04-REVN-328-2018.doc Arjun IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.328 OF 2018 Parul Pannalal Shah …Applicant Versus Reliance Capital Ltd. & Anr. …Respondents _______________________________________________________________ Mr. Jagdish B. Choudhary, for the Applicant. Mr. S. A. Karmakar, APP for the Respondent-State. _______________________________________________________________ CORAM: MADHAV J. JAMDAR, J. PRONOUNCED ON: 27 NOVEMBER 2025 UPLOADED ON: 29 NOVEMBER 2025 JUDGMENT: 1. Heard Mr. Choudhary, learned Counsel appearing for the Applicant and Mr. Karmakar, learned APP for the Respondent-State. None appears for Respondent No.1 although served. 2. By the present Criminal Revision Application, the Applicant is challenging the legality and validity of the Judgment and Order dated 30th January 2016 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Appeal No.635 of 2013 as also the Judgment and Order dated 26th April 2013 passed by the learned Metropolitan Magistrate, 72nd Court, Vikhroli, Mumbai in C.C. No.706/SS/2012 (“impugned Orders”). 3. By the impugned Order dated 26th April 2013, the learned Metropolitan Magistrate has convicted the Applicant for the offence 1 ARJUN VITTHAL KUDHEKAR Digitally signed by ARJUN VITTHAL KUDHEKAR Date: 2025.11.29 18:44:06 +0530 04-REVN-328-2018.doc punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced the Applicant to suffer simple imprisonment for six months. The Applicant has been directed to pay compensation of Rs.17,904/-. The Appeal filed by the Applicant has been dismissed. 4. Mr. Choudhary, learned Counsel for the Applicant, states that the entire compensation of Rs.17,904/- has been deposited before the learned Trial Court and that the Applicant has no objection if the same is permitted to be withdrawn by Respondent No.1. 5. As far as the merits are concerned, Mr. Choudhary, learned Counsel, submits that although the complaint was filed by one Jatin Kumar Dharamashi, he was allegedly authorized by Respondent No.1- Original Complainant to file the complaint against the Applicant/Accused. He submits that the Affidavit of evidence has been filed by Mr. Yogesh Upadhaya, who has also not filed any document to show that he was legally authorized by the complainant. It is submitted that the Complainant has admitted that he has no personal knowledge about the transaction. Respondent No.1 has not produced any original power of attorney or minutes books to prove the authority of Mr. Jatin Kumar Dharamashi or Mr. Yogesh Upadhaya. It is his submission that the learned Trial Court as well as the learned Appellate Court have not considered these points, although they were extensively argued before them. 2 04-REVN-328-2018.doc 6. Perusal of the Order passed by the learned Appellate Court shows that all these points were not considered by the learned Appellate Court. However, the Order of the Metropolitan Magistrate shows that these points were considered. Even though all these points were argued before the learned Appellate Court, the same have not been dealt with. The reasons given by the learned Appellate Court are to be found in Paragraph No.12. The said Paragraph No.12 reads as under :- “12. The Ld. Lower Court while deciding the case on merits has relied upon the principles laid down in the case of Associated cement company decided by Hon'ble Supreme Court (1998) 1 SC Case 687 and also Candy Spirit Private limited decided by Hon'ble Bombay High Court 2012 all MR (Cri) 403 and then has held that the representative has proper authority to proceed but in the present case appellant has relied upon principles laid down in the case of Candy Spirit Private Ltd and AC Narayan as well as Ashish Shah. It is important to note that though the grievance is raised regarding filing of complaint by one Jatin Dharmshee and the Ld. Lower Court by relying upon the case of Associated cement company, has held that the facts of the present case and facts of the cited case were different. Moreover, though in the appeal also respondent No.1 has relied upon the principles laid down in the case of Candy Spirit but considering the principles laid down in the case of Associated Cement by Hon'ble Supreme Court, the facts of the said case and the facts laid down in AC Narayan Case and facts of the present case, I hold it proper to rely upon principles laid in the case of Associated cement company. Under such circumstances and when appellant/accused has failed to rebut the presumption u/s. 139 of the Negotiable Instruments Act when it is expected from him to discharge the burden, I did not find merits in the said grounds made out by the appellant. Therefore I hold that Ld. Lower Court has properly appreciated the facts, evidence and provisions of law and there is no necessity to interfere in the said Judgment and order.” 3 04-REVN-328-2018.doc 7. The above Paragraph clearly indicates that the various points raised have not been properly dealt with. Therefore, in the facts and circumstances, the Judgment and Order dated 30th January 2016 passed by the learned Additional Sessions Judge is required to be quashed and set aside and the said Criminal Appeal is required to be remanded back to the learned Additional Sessions Judge. However, it is required to note that the said Criminal Appeal is of the year 2013. The Applicant is aged 58 years. The Applicant has stated that he has no objection if the amount of Rs.17,904/-, deposited before the learned Trial Court, is permitted to be withdrawn by Respondent No.1. 8. Thus, in the peculiar facts and circumstances of this case, the impugned Order dated 26th April 2013 passed by the learned Metropolitan Magistrate, 72nd Court, Vikhroli, Mumbai in C.C. No. 706/SS/2012 as well as the Judgment and Order dated 30th January 2016 passed by the learned Additional Sessions Judge, Gr. Mumbai in Criminal Appeal No.635 of 2013, are quashed and set aside and the said C.C. No.706/SS/2012 is dismissed, subject to the voluntary statement of the Applicant that the amount of Rs.17,904/-, along with accrued interest, can be permitted to be withdrawn by Respondent No.1. 9. Accordingly, Respondent No.1 is permitted to withdraw the said amount alongwith accrued interest, if any. 4 04-REVN-328-2018.doc 10. The Criminal Revision Application is disposed of in above terms with no order as to costs. [MADHAV J. JAMDAR, J.] 5