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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. OF 2019

IN

CRIMINAL REVISION APPLICATION NO. 291 OF 2019

(For Bail & Suspension of Sentence)

DISTRICT: SOLAPUR

Kalapundi Rajan Prabhu, ]

Age: 49 years, Occ.: Business, ]

R/o. 2-12, 635/2, Road No. 14, ]

Nagarjun Nagar, Tarnaka, ]

Hyderabad ]…Applicant

(Orig. Accused)
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Versus

The State of Maharashtra ]...Respondent

TO

THE HON’BLE CHIEF JUSTICE

OF THE HON’BLE HIGH

COURT OF BOMBAY AND HIS

COMPANION HON’BLE PUISNE

JUDGES

THE HUMBLE APPLICATION

OF THE APPLICANT

ABOVENAMED

MOST RESPECTFULLY SHEWHTH:

1. The Applicant has challenged judgment his conviction

recorded in R.C.C. 1127/2014 by Ld. Magistrate, First

Class, Solapur and the judgement and order dated

4.5.2019 passed by the Ld. Sessions Judge, Solapur in

Criminal Appeal No.98 of 2015 by way of filing Cri.

Revision 291/2019. The said revision was admitted by

this Hon’ble Court vide its order dated 14.6.2019. By

way of the present application in the revision, the

applicant seeks suspension of his substantive sentence

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and his release on bail on the following amongst other

grounds which are taken without prejudice to each

other viz.:

GROUNDS

A) That the impugned judgment and order is ex-facie

wrong on the face of the record and evidence of the

case and therefore same deserve to be quashed

and set aside.

B) That the Ld. Additional Sessions Judge ought to

have allowed the appeal and he ought to have set

aside the impugned judgment and order of

conviction and sentence recorded by the Ld.

Magistrate.

C) That both the Courts below totally failed and

understand the case of the prosecution and

swayed away with the fact that the Applicant

committed cheating.

D) That both the Courts below ought to have taken

into consideration the evidence of prosecution

witnesses in its proper perspective and ought to

have disbelieved the same and ought to have given

benefit of doubt to the Applicant.

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E) That both the courts below failed to considered the

fact that transaction between complainant and

accused was an agreement to supply electrical

material is in civil nature, the same dispute cacnot

be agitated in the form of criminal proceedings.

F) Even considering the allegations on face of it, no

offence U/s. 420 made out as prosecution failed to

prove that there has dishonest intention of

accused to deceive. The prosecution story and

evidence on record contradict and not achieve the

ingredients of Sec. 420.

G) The complaint in the case was tried to circumvent

the jurisdiction of civil court.

H) That the courts below failed to appreciate the case

law-SC 1999 CRC J 598 wherein apex Court held

that, that liability if any, arising by breach of Civil

in nature not criminal, which is squarely applied

to the present case.

I) So also, court below failed to appreciate case law

2007 All MLR 3302 SC, the Apex Court held that,

mere failure3 to subsequently keep a promise, one

cannot presume that he had culpable intention to

break promise.
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J) That courts below failed to considered the Ratio

laid down by Supreme Court in 2011 All MLr 3603

SC, the apex court held that, if there is favour of

Civil nature, the same cannot be agitated in the

form of Criminal Proceeding.

K) It appears that in view of the material on record,

the transaction between the parties was an

agreement and the the dispute is of Civil Nature

however with a view to pressurize appellant and to

avoid to circumvent the jurisdiction of Civil Court,

complainant filed criminal complaint.

L) It is pertinent to note that as per complainant

himself, he had cancelled the contract entered into

between him and the accused and had got back

his advance payment from the accused through

cheque, the further story narrated by the

complainant in relation to such cancelled

transaction deposed by him in his examination in

chief as a matter of fact has no meaning at all.

M) That more particularly, it is an admitted position

that the complainant has not returned the electric

motors already received by him from the accused

and till date is in possession of the same.

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N) In order to avoid return of those electric motors,

the complainant has constituted false accusations

against the accused.

O) This fact clarified through complainant in his

cross examination admitted that he has not yet

returned the electric motors received by him from

the accused.

P) Hence, it shows that complainant has not come

with a clean hands before this Hon’ble Court and

with ulterior motive such false complaint is lodged

against the accused.

Q) So far as concerned to the electronic evidence

there is no evidence as regard the source of

obtaining CD. Thus, whatever electronic

record/evidence, the prosecution has brought on

record, even if considering presuming for the sake

of moment admissible, the same is not

corroborating the accusation made against the

accused.

R) That the courts below failed to considered fact that

there is no reliable evidence on record to show

that electric motors of particular company was

agreed to be provided by the accused.

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S) Further, evidence on record shows that the

contract between the parties has been cancelled

and therefore, thought the alleged electronic

record presumed to be a reliable evidence or the

sake of presumption, on its basis it cannot be held

that the accused has committed the alleged

offences.

T) The fact goes to show that the accused is involved

in this case with ulterior motive.

U) That the court below has failed to considered the

amount of fine which is onerous.

V) Thus, both the Courts recorded a perverse and

illegal finding by accepting the contradictory

findings and held that the prosecution has proved

the case for the offence punishable u/s. 420 of

I.P.C.

W) That both the Courts below failed to take into

consideration the fact that the incident took place

on 27.5.2008 between 4.00 to 4.30 p.m., however,

after delay of one day F.I.R. came to be lodged

which does not inspire confidence in prosecution

story and the said delay is fatal to the prosecution

case.
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X) That the sentence imposed upon the applicant i.e.

SI for 6 months is a short term sentence. The

applicant has already served 1 month behind the

bars.

Y) Thus, both the Courts below committed perversity

in relying upon non cogent and unreliable

evidence and on the basis of the same convicted

the accused.

Z) That even otherwise the impugned judgment and

order is illegal, bad in law and against the

principles of natural justice and same deserves to

be quashed and set aside.

12. The Applicant states that both the Courts below

committed manifest error of law and fact while

convicting the applicant which resulted into great

miscarriage of justice. The Applicant states that

the impugned conviction and sentence imposed by

the Trial Court and further confirmed by the

Sessions Court is improper, bad in law, illegal and

both the Courts below have not properly

appreciated the evidence on record and further

considered the provisions of law which goes to the

root of the matter. The Applicant states that there

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are other glaring defects in the concurrent

judgment and order of conviction and sentence

whereby accused could not have been convicted

for the offences charges against him.

13. Thus, the Applicant has very good case on merit in

the present revision and he has sanguine hopes in

succeeding in the present revision. The Applicant

states that considering the period of short

sentence of six month, if the revision is admitted,

there is no possibility that it may heard finally

within the said period of six month and therefore

in the interest of justice the applicant be released

on bail by suspending the conviction and sentence

on such terms and conditions as this Hon’ble

Court deem fit and proper. If the applicant is not

released on bail, great prejudice will be caused to

the applicant which may not be compensated in

terms of money because the revision filed by the

applicant by then would be rendered infructuous.

It is therefore necessary in the interest of justice to

release the applicant on bail by suspending the

conviction and sentence imposed on him.

14. That the Applicant has not filed any other revision,

appeal or application either in this Hon’ble Court

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or in the Hon’ble Supreme Court of India touching

the present subject matter.

15. The Applicant states that he does not have any

other equally efficacious remedy save and except

by way of present criminal revision application.

16. The Applicant states that after the judgment and

order pronounced on 4.5.2019 by the Learned

Sessions Judge, Solapur, the Applicant was taken

into custody on the same day and now he is in jail.

Therefore, the affidavit of the applicant on the

present revision be dispensed with.

17. In the circumstances, the Applicant prays that:

1) The Applicant therefore prays that:

a. The application may be allowed.

b. The order of Conviction passed by the Ld.

Magistrate, First Class, Solapur in R.C.C.

1127/2014 and partly modified by the Ld.

Sessions Court, Solapur in Criminal Appeal

98/2015 vide its order dated 4.05.2019 be

kindly suspended and stayed.

c. The applicant be released on bail pending the

hearing and final disposal of the Revision

Application.
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d. Interim/ ad-interim in terms of prayer clause

(b) & (c) may be granted.

a. Any other just and suitable order in

favour of the applicant may be passed.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN

DUTY BOUND SHALL EVER PRAY.

Place: Mumbai

Date: June, 2019

Advocate for the Applicant

Ritesh M. Thobde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. OF 2019

IN

CRIMINAL REVISION APPLICATION NO. 291 OF 2019

(For Bail & Suspension of Sentence)

DISTRICT: SOLAPUR

Kalapundi Rajan Prabhu, ] … Applicant

Versus

The State of Maharashtra ] ... Respondent

SYNOPSIS

The Applicant has challenged judgment his

conviction recorded in R.C.C. 1127/2014 by Ld.

Magistrate, First Class, Solapur and the

judgement and order dated 4.5.2019 passed by

the Ld. Sessions Judge, Solapur in Criminal

Appeal No.98 of 2015 by way of filing Cri. Revision

291/2019. The said revision was admitted by this

Hon’ble Court vide its order dated 14.6.2019. By

way of the present application in the revision, the

applicant seeks suspension of his substantive

sentence and his release on bail.

POINTS TO BE URGED:
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As stated in the Application.

Acts to be referred to:

1. Criminal Procedure Code, 1973

2. Indian Penal Code
3. Indian Evidence Act
Authorities to be relied upon:

AUTHORITIES CITED:
At the time of oral submissions
Mumbai
Date: /06/2019 Advocate
for Applicant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. OF 2019

IN

CRIMINAL REVISION APPLICATION NO. 291 OF 2019

(For Bail & Suspension of Sentence)

DISTRICT: SOLAPUR

Kalapundi Rajan Prabhu, ] …Applicant

Versus

The State of Maharashtra ]...Respondent

INDEX

Sr. Particulars Page No

No.
Synopsis
Memo of Application

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