ASHRAF KHAN Vs. STATE

JUDGEMENT

(1.) THIS Court vide order dated 30th November, 2010 had directed for release of amount of ` 20 lac to the respondent no.2 (hereinafter referred as respondent). The petitioner has made this application for recalling of the order. The contention of the Counsel for the petitioner is that the Court should not come in the aid of black money and should take a serious view of cash transactions and release of this amount in favour of the respondent would in fact amount to Court helping illegality and perpetuating illegal transaction. He submitted that the transaction involved was in respect of ill gotten money of the parties and the Court should not have ordered for release of the amount in favour of the respondent.

(2.) BRIEF facts relevant for the purpose of deciding this application are that the respondent filed a complaint under Section 138 of Negotiable Instruments Act about dishonour of two cheques issued by the petitioner for a sum of ` 26.25 lac. One cheque was for a sum of ` 21 lac and other cheque was for a sum of ` 5.25 lac. The respondent/complainant has contended that ` 55.5 lac and thehe had sold two agricultural properties for a sum of petitioner who was his friend asked for a friendly loan of ` 26.25 lac, he out of his sale proceeds, received in cash, gave ` 26.25 lac of amount in cash, to the petitioner as a friendly loan which was to be returned within a period of six months. However, when it was not returned and complainant demanded his loan back petitioner assured for return of the loan soon and issued two cheques of aforesaid amount of ` 21 lac and ` 5.25 lac. These cheques got dishonoured and despite notice of demand, amount was not paid. The respondent then filed a complaint under Section 138 of Negotiable Instruments Act. The Court of MM found petitioner guilty of offence under Section 138 of NI Act and awarded one year imprisonment and compensation of `41 lac. In appeal, the learned Court of Sessions re-considered the entire evidence and arguments about the liability of the petitioner and upheld the judgment of learned trial Court. However when the appeal was dismissed, on an application under Section 389 Cr.P.C., the sentence of the appellant was suspended and the appellant approached this Court by way of revision. At the time of admission of revision, the sentence awarded to the appellant was suspended subject to condition that he shall deposit ` 20 lac out of the compensation awarded to the complainant, this included ` 5 lac already deposited with the trial Court. This amount was deposited and the respondent/complainant then made an application for release of this amount stating that marriages of his daughters were held up because of the funds, as approximately half of the funds he had raised by selling his agricultural properties were taken by the petitioner who was a close friend of him, but this amount was not returned. Therefore since in two Courts he has already succeeded this amount of ` 20 lac be released. The amount was released in favour of the respondent.