SHANTNU KESHAV BANDIWADEKAR Vs. KIRAN KUNDALIK BORKE

JUDGEMENT

(1.) Rule. Learned Advocate for the first Respondent waives service. Learned A.P.P waives service for the second Respondent. Considering the narrow controversy involved, the petition is immediately taken up for final disposal.

(2.) The first Respondent filed a complaint against the petitioner alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act of 1881). By a Judgment and Order dated 11th October 2007, the petitioner was convicted by the learned Magistrate. Apart from substantive sentence of simple imprisonment of two months, the petitioner was directed to pay compensation of Rs.70,000/- within a period of one month from the date of the order. In default of payment of compensation, he was directed to suffer simple imprisonment for four months.

(3.) An appeal against the order of conviction was preferred by the petitioner. In the Appeal , there was a delay of 4 days and therefore, an application for condonation of delay was filed by the petitioner. In the application for condonation of delay, an affidavit was filed by the petitioner stating that though he had assured the court to deposit a sum of Rs.25,000/-, due to serious illness of his brother, he was required to proceed to his native place and therefore, he could not deposit the said amount. On 17th December 2007, the petitioner applied for time before the Sessions Court on the ground that he was making arrangements for depositing the requisite amount. On 31st January 2008 the petitioner applied to the Sessions Court for extension of time of one month. The petitioner stated in the said application that he would deposit a sum of Rs.5,000/-. The learned Sessions Judge passed an order on the said application recording that the Advocate for the petitioner was absent and therefore the application was filed. By order dated 24th January 2008, application for condonation of delay filed by the petitioner was dismissed in default. The learned IV Ad hoc Additional Sessions Judge, Thane while dismissing the application observed that the Appeal was not preferred by the petitioner within the stipulated period of limitation. The learned Judge observed that though the order was passed on 21st January 2008 permitting the petitioner to deposit a sum of Rs.5,000/-, later on it was revealed that the appeal preferred by the petitioner was not within limitation and there was no direction issued to deposit the amount.