GOVIND BHAI DAYAL MANGE Vs. VIJAYKUMAR BALKISHAN AGARWAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 22-6-1999 passed by a learned single Judge of this Court dismissing the appellant's Notice of Motion No. 2023 of 1997, taken out by for setting aside the ex parte decree dated 20-7-1995.

(2.) The respondent No. 1 (for short, the respondent) filed a suit, bearing summary Suit No. 443 of 1995, against the appellant for recovery of loan of Rs. 1,00,000/- together with interest, totally amounting to Rs. 1,39,496/ -. The respondent's case was that a cheque for Rs. 1,00,000/- dated 25-11-1991 issued by the appellant towards repayment was dishonoured. The respondent had thereafter filed a criminal prosecution against the appellant under section 138 of the Negotiable Instruments Act. In the said prosecution, the appellant was convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,00,000/- and in default to undergo rigorous imprisonment for three more months. The order further directed that if the amount of the fine was recovered, Rs. 90,000/- which was then the balance amount due on the negotiable Instrument as Rs. 10,000/- had already been paid, be paid to the respondents as compensation. It is not in dispute that the appellant deposited the fine of Rs. 1,00,000/- and the respondent has received a sum of Rs. 90,000/-towards the compensation as awarded by the Judicial Magistrate.

(3.) As a condition for admission of the present appeal, this Court directed the appellant to deposit a sum of Rs. 75,000/- and the respondent was allowed to withdraw the said amount also. Thus, the respondent has thus received a sum of rs. 1,65,000/- apart from Rs. 10,000/- which was already paid by the appellant directly to them.