IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 462 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH ================================================================
================================================================ AKHUBHA UDESINH SISODIYA Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
MR RD KINARIWALA, ADVOCATE for the Applicant(s) No. 1 MR MANISH J PATEL, ADVOCATE for the Respondent(s) No. 2 MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 09/11/2012 ORAL JUDGEMENT
[1.0] RULE. Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 – State of Gujarat and Shri Manish J. Patel, learned advocate waives service of notice of Rule on behalf of respondent No.2 – original complainant. In the facts and circumstances of the case and as it is reported that parties have settled the dispute amicably and the applicant has deposited the entire cheque amount along with Rs.5000/ towards the cost as per the earlier order passed by this Court and has also deposited 15% of the cheque amount with Gujarat State Legal Services Authority and as the applicant is praying to compound the offence for which he has been convicted, present Revision Application is taken up for final hearing today.
[2.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 30.03.2011 passed by the learned Metropolitan Magistrate (NI Act), Court No.1, Ahmedabad in Criminal Case No.344 of 2009 convicting the applicant herein – original accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) for dishonor of cheque of Rs.1 lakh issued by the applicant herein – original accused in favour of the original complainant as well as the impugned judgment and order dated 29.08.2012 passed by the learned Appellate Court – learned Additional Sessions Judge, Court No.7, City Sessions Court, Ahmedabad in Criminal Appeal No.146 of 2011 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein – original accused confirming the judgment and order passed by the learned trial Court.
[3.0] Today, when the present Revision Application is taken up for final hearing, Shri Kinariwala, learned advocate appearing on behalf of the applicant has stated at the Bar that parties have settled the dispute amicably and the applicant herein – original accused has already by now deposited Rs.1 lakh with the Registry of this Court / trial Court (Rs.80,000/ with the Registry of this Court and Rs.20,000/ with the learned trial Court). He has also stated at the Bar that the applicant has also deposited a further sum of Rs.5000/ towards the cost of the present litigation as per the earlier order passed by this Court dated 24.09.2012. He has also stated at the Bar that under the settlement the applicant herein – original accused has agreed to pay a further sum of Rs.10,000/ to the original complainant on or before 15.12.2012. He has also stated at the Bar that the applicant herein – original accused has also deposited 15% of the cheque amount i.e. Rs.15,000/ with the Gujarat State Legal Services Authority which the applicant herein – original accused is required to deposit in view of the decision of the Hon’ble Supreme Court in the case of Damodar S. Prabhu vs. Sayed Babalal H. reported in (2010)5 SCC 663. He has stated at the Bar that respondent No.2 – original complainant has no objection if the applicant is permitted to compound the offence for which he has been convicted.
[4.0] Shri Manish Patel, learned advocate appearing on behalf of the original complainant has stated at the Bar that on permitting the applicant to withdraw the entire amount which is already deposited by the applicant herein – original accused and on payment of further sum of Rs.10,000/ to the original complainant, which the applicant is required to pay on or before 15.12.2012, respondent No.2 herein – original complainant has no objection if the applicant herein – original accused is permitted to compound the offence for which he has been convicted.
[5.0] Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of the State has requested to pass appropriate order in the facts and circumstances of the case.
[6.0] Heard Shri R.D. Kinariwala, learned advocate appearing on behalf of respondent No.2 – original complainant and Ms. C.M. Shah, learned APP appearing on behalf of the State. As stated herein above, the applicant herein – original accused as well as respondent No.2 – original complainant have settled the dispute amicably. Applicant has deposited the entire cheque amount i.e. Rs.1 lakh out of which Rs.80,000/ deposited with the Registry of this Court and Rs.20,000/ is already deposited earlier with the learned trial Court. It is also reported that the applicant has also deposited a further sum of Rs.5000/ towards the cost of the present litigation with the Registry of this Court as per the earlier order passed by this Court dated 24.09.2012. It is also reported that the applicant – original accused has already deposited 15% of the cheque amount i.e. Rs.15,000/ with the Gujarat State Legal Services Authority, which the applicant herein – original accused is required to deposit in view of the decision of the Hon’ble Supreme Court in the case of Damodar S. Prabhu (Supra) while requesting to permit him to compound the offence for which he has been convicted. The applicant herein – original accused has also agreed to pay a further sum of Rs.10,000/ to the original complainant to be paid on or before 15.12.2012. In view of the above and on permitting the original complainant to withdraw the entire amount deposited by the applicant herein – original accused, the original complainant has no objection if the applicant is permitted to compound the offence for which he has been convicted.
[7.0] Under the circumstances and in view of the above and considering the decision of the Hon’ble Supreme Court in the case Damodar S. Prabhu (Supra), applicant herein – original accused is hereby permitted to compound the offence for which he has been convicted. Consequently, the impugned judgment and order of conviction and sentence dated 30.03.2011 passed by the learned Metropolitan Magistrate (NI Act), Court No.1, Ahmedabad in Criminal Case No.344 of 2009 as well as the impugned judgment and order dated 29.08.2012 passed by the learned Appellate Court – learned Additional Sessions Judge, Court No.7, City Sessions Court, Ahmedabad in Criminal Appeal No.146 of 2011 are hereby quashed and set aside. The original complainant is permitted to withdraw the amount of Rs.1,05,000/ which the applicant has deposited by now and the Registry to pay Rs.85,000/ to the original complainant (which the applicant has deposited with the Registry of this Court) and the learned trial Court before whom Rs.20,000/ is deposited by the applicant herein is directed to pay the aforesaid amount to the original complainant by account payee cheque at the earliest. The aforesaid order is passed subject to further payment of Rs.10,000/ by the applicant herein – original accused which the original accused has agreed to pay to the original complainant on or before 15.12.2012. In case the aforesaid further amount of Rs.10,000/ is not paid by the original accused on or before 15.12.2012, it will be open for the respondent No.2 – original complainant to submit an appropriate application in present proceedings for appropriate further order. Rule is made absolute accordingly to the aforesaid extent.
(M.R. Shah, J.) Menon