IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 408 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= AMITBHAI KANUHBHAI TRIVEDI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance :
MR PP MAJMUDAR for Applicant(s) : 1, MS CHETNA SHAH ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1 and 3, MR HARSHAD K PATEL for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 06/09/2012
ORAL JUDGMENT
1. Leave to join the Superintendent, Central Prison, Sabarmati, Ahmedabad, as party respondent No.3, is granted.
2. Rule. Mr.Harshad Patel, learned advocate waives the service of notice of rule on behalf of the respondent No.2 and Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent Nos.1 and 3.
3. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties and as it is reported that parties have settled the dispute amicably, present Revision Application is taken up for final hearing today.
4. Present Criminal Revision Application, under Section 397 read with Section 401 of the Code of Criminal Procedure, has been preferred by the petitioner – original accused challenging the judgement and order dtd.22/9/2009 passed by the learned Metropolitan Magistrate, N.I.Act Court No.3, Ahmedabad in Criminal Case No.4351 of 2008 (Old Case No.1739 of 2004) convicting the petitioner - original accused for the offence punishable under section 138 of Negotiable Instruments Act as well as the impugned Judgement and Order passed by the learned Additional Sessions Judge, Court No.8, Ahmedabad in Criminal Appeal No.272 of 2009 dtd.25/8/2011.
5. Today, when the present Criminal Revision Application is taken up for final hearing, learned Advocates appearing on behalf of the respective parties more particularly learned advocate appearing on behalf of the complainant- respondent No.2 as well as petitioner herein - original accused have jointly submitted that in the facts and circumstances of the case and as the entire cheque amount in question has been paid by the petitioner - original accused to the respondent No.2 – original complainant, the matter is settled between the parties and learned advocate appearing on behalf of the respondent No.2 – original complainant has stated at the bar that he has no objection if the offence is permitted to be compounded and the impugned judgement and orders passed by both the Courts below are quashed and set aside on any condition that may be imposed by this Court.
6. The learned advocates appearing on behalf of the respective parties have heavily relied upon the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu Versus Sayed Babalal H., reported in (2010)5 SCC 663 and have requested to permit the respective parties to compound the offence and quash and set aside the impugned judgement and orders passed by both the Courts below.
7. Mr.Majmudar, learned advocate appearing on behalf of the petitioner - original accused and Mr.Harshad Patel, learned advocate appearing on behalf of the respondent No.2 – original complainant have jointly submitted that the parties have settled the dispute amicably and they have entered into settlement / agreement dtd.5/9/2012 under which petitioner - original accused has agreed to pay Rs.25,000/- (which is paid today) and that the respondent No.2 – original complainant has agreed to permit the petitioner - original accused to withdraw the amount of Rs.50,000/- which the petitioner – original accused has deposited pursuant to the earlier order passed by this Court dtd.20/9/2011. It is also submitted that it is also agreed by and between the learned advocates appearing on behalf of the respective parties, more particularly petitioner - original accused that the balance amount of Rs.1,25,000/- shall be paid in three installments, as under:-
================================== Sr. Amount Agreed to be paid on or before No. (in Rs.) ==================================
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1. Mr.Majmudar, learned advocate appearing on behalf of the petitioner – original accused has also stated at the bar that the petitioner herein – original accused has already depositd a sum of Rs.30,000 with the Gujarat State Legal Services Authority being 15% of the cheque amount in question towards the cost, which is to be paid as observed by the Hon'ble Supreme Court in the case of Damodar S. Prabhu. (Supra).
2. Mr.Majmudar, learned advocate appearing on behalf of the petitioner – original accused has submitted that the petitioner - original accused shall pay the balance amount of Rs.1,25,000/- as stated hereinabove, failing which the impugned judgement and orders passed by both the courts below convicting the petitioner herein – original accused for the offence under section 138 of the Negotiable Instruments Act shall be restored / revived.
3. In view of the above learned advocate appearing on behalf of the respective parties have requested to dispose of the present Revision Application by permitting the petitioner - original accused to compound the offence for which the petitioner - original accused has been convicted for the offence under section 138 of the Negotiable Instruments Act.
4. Having heard learned advocates appearing on behalf of the respective parties and considering the subsequent development and settlement between the original complainant – respondent No.2 and original accused – petitioner recorded in the compromise / agreement dtd.5/9/2012, which is directed to be taken on record and considering the fact that the petitioner herein – original accused has already deposited Rs.30,000 being 15% of the cheque amount in question with the Gujarat State Legal Services Authority, towards costs, to be deposited as observed by the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) and considering the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra), the petitioner – original accused and respondent No.2 – original complainant, are hereby permitted to compound the offence committed by the petitioner – original accused under Section 138 of the Negotiable Instruments Act and consequently, both the impugned judgement and orders, more particularly the impugned judgement and order dtd.22/9/2009 passed by the learned Metropolitan Magistrate,
N.I.Act Court No.3, Ahmedabad in Criminal Case No.4351 of 2008 (Old Case No.1739 of 2004) convicting the petitioner - original accused for the offence punishable under section 138 of Negotiable Instruments Act as well as the impugned Judgement and Order passed by the learned Additional Sessions Judge, Court No.8, Ahmedabad in Criminal Appeal No.272 of 2009 dtd.25/8/2011, are hereby quashed and set aside. However, it is observed that in case, the petitioner - original accused fails to make the payment of balance amount of Rs.1,25,000/- as per the agreement / compromise dtde.5/9/2012, both the impugned judgement and orders passed by the courts below convicting the petitioner - original accused for the offence punishable under section 138 of the Negotiable Instruments Act shall revive. Registry is hereby directed to pay Rs.50,000/- which has been deposited by the petitioner - original accused pursuant to the earlier order dtd.20/9/2011 passed by this Court, to the respondent No.2 – original complainant on proper verification and identification by Account Payee Cheque forthwith. Consequently, The petitioner herein - original accused, who is reported to be in Central Prison Sabarmati, Ahmedabad, is ordered to be released forthwith, in case he is in jail, if not required in any other case. Rule is made absolute accordingly.
Direct Service is permitted.
[M.R. SHAH, J.]
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