Date : 11/10/2012 1.00. As common question of law and facts arise in both these Revision Applications and as such are between the same parties, both the Revision Applications are heard, decided and disposed of by this common judgement and order. 2.00. RULE. Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behlaf of the respondent No.1 – State and Mr.N.R. Maulvi, learned advocate appearing for Mr.Shakeel Qureshi, learned advocate waives the service of notice of rule on behalf of the respondent No.2 - original complainant, in both these Revision Applications.
3.00. In the facts and circumstances of the case and as it is reported that the respective parties have settled the dipsute amicably and the common petitioner - original accused has deposited the entire amount under the cheques in question with the learned trial court / this Court and even the petitioner herein – original accused has also deposited 15% of the amount under the cheques in question and as the petitioner herein has requested to permit him to compound the offences for which he has been convicted and the respondent No.2 herein – original complainant has no objection if the petitioner herein is permitted to compound the offences for which he has been convicted, both these Revision Applications are taken up for final hearing today.
3.01. Criminal Revision Application No. 59 of 2012 has been preferred by the petitioner - original accused to quash and set aside the impugned Judgement and Order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Bhuj-Kutch in Criminal Case No. 1461 of 2008 dtd.25/1/2010 by which the learned trial court has convicted the petitioner for the offence punishable under section 138 of the Negotiable Instruments Act as well as the Judgement and Order passed by the learned appellate court - learned Sessions Judge, Kutch-Bhuj in Criminal Appeal No.4 of 2010 dtd.25/1/2012 by which the learned appellate court has dismissed the appeal preferred by the petitioner herein confirming the Judgement and Order passed by the learned trial court.
3.02. Criminal Revision Application No. 60 of 2012 has been preferred by the petitioner - original accused to quash and set aside the impugned Judgement and Order of convictin and sentence passed by the learned Additional Chief Judicial Magistrate, Bhuj-Kutch in Criminal Case No. 1462 of 2008 dtd.25/1/2010 by which the learned trial court has convicted the petitioner for the offence punishable under section 138 of the Negotiable Instruments Act as well as the Judgement and Order passed by the learned appellate court - learned Sessions Judge, Kutch-Bhuj in Criminal Appeal No.5 of 2010 dtd.25/1/2012 by which the learned appellate court has dismissed the appeal preferred by the petitioner herein confirming the Judgement and Order passed by the learned trial court.
4.00. Mr.Y.J. Patel, learned advocate appearing on behalf of the petitioner herein – original accused in both the Revision Applications has stated at the bar that total amount of comes to Rs.1,50,000/- under the cheques in question out of which the petitioner herein – original accused had earlier deposited Rs.75,000/- with the learned trial court in respective Criminal Cases and has further deposited a sum of Rs.75,000/- with the Registry of this Court. Thus, the petitioner - original accused has deposited the entire amount under the cheques in question which came to be dishonoured, for which the petitioner - original accused has been convicted. He has also stated at the bar that the amount of Rs.75,000/- deposited by the petitioner
- accused, has already been withdrawn by the respondent No.2 – original complainant. He has also stated at the bar that the respondent No.2 – original complainant may be permitted to withdraw the amount of Rs.75,000/- deposited by the petitioner
- original accused with the registry of this Court.
4.01. Mr.Y.J. Patel, learned advocate appearing on behalf of the petitioner herein – original accused in both the Revision Applications has stated at the bar that the petitioner - original accused has already deposited 15% of the amount under the cheques in question with the Gujarat State Legal Services Authority which the petitioner - accused is required to deposit in view of 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, so as to enable the petitioner - accused to compound the offence for which he has been convicted. Therefore, he has requested to permit the petitioner to compound the offences for which he has been convicted. He has also stated at the bar that the respondent No.2 – original complainant has no objection if the petitioner - accused is permitted to compound the offences for which he has been convicted.
5.00. Mr.Maulvi, learned advocate appearing for Mr.Shakeel Qureshi, learned advocate appearing on behalf of the respondent No.2 – original complainant has stated at the bar that the respondent No.2 – original complainant has no objection if the petitioner - accused is permitted to compound the offences for which he has been convicted. However, he has requested to direct the registry to transmit / transfer the amount of Rs.75,000/- deposited by the petitioner with the registry of this Court, to the learned trial court to be deposited in Criminal Case No. 1462 of 2008 and permit the respondent No.2 – original complainant to withdraw the same.
6.00. Ms.Chetna Shah, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case.
7.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.01. It appears that the petitioner - original accused has been convicted for the offence punishable under section 138 of the Negotiable Instruments Act in two cases for dishonour of the cheques of Rs.50,000 and Rs.1,00,000/- respectively. It is reported that the the petitioner - original accused had deposited Rs.75,000/- with the learned trial court in respective cases (towards part payment) and has also deposited balance amount of Rs.75,000/- with the registry of this Court. Thus, the petitioner - original accused has deposited entire amount under the cheque in question. It is reported that an amount of Rs.75,000/- deposited by the petitioner – original accused with the learned trial court has been withdrawn by the respondent No.2 – original complainant and balance amount of Rs.75,000/- is lying with the registry of this Court. It is also required to be noted that the petitioner - original accused has deposited 15% amount of the cheques in question i.e. Rs.22,500/- with the Gujarat State Legal Services Authority in view of the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) and even the respondent No.2 – original complainant has also no objection if the petitioner - original accused is permitted to compound the offences for which he has been convicted.
8.00. Under the circumstances, on permitting the respondent No.2 herein – original complainant to withdraw the amount of Rs.75,000/- (Rupees Seventy Five Thousand), the petitioner - original accused can be permitted to compound the offences for which he has been convicted. Under the circumstances, the petitioner herein – original accused is hereby permitted to compound the offences for which he has been convicted. Consequently, the impugned judgement and orders, more particularly, the impugned Judgement and Order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Bhuj-Kutch in Criminal Case No. 1461 of 2008 dtd.25/1/2010 as well as the Judgement and Order passed by the learned Sessions Judge, Kutch-Bhuj in Criminal Appeal No.4 of 2010 dtd.25/1/2012, impugned in the Criminal Revision Application No. 59 of 2012 so also the impugned Judgement and Order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Bhuj-Kutch in Criminal Case No. 1462 of 2008 dtd.25/1/2010 as well as the Judgement and Order passed by the learned appellate court - learned Sessions Judge, Kutch-Bhuj in Criminal Appeal No.5 of 2010 dtd.25/1/2012, impugned in the Criminal Revision Application No. 60 of 2012, are hereby quashed and swet aside and the petitioner herein – original accused is in jail, he is ordered to be released forthwith if not required in any other case.
Registry is hereby directed to transmit / transfer the amount of Rs.75,000/- (Rupees Seventy Five Thousand) deposited by the petitioner herein with the registry of this
Court on 8/10/2012, to the learned trial court to be deposited in Criminal Case No. 1462 of 2008 within a period of ten days from today and on such transfer/transmission, the learned trial court is directed to permit the respondent No.2 herein – original complainant to withdraw the same and pay the said amount to the respondent No.2 herein - original complainant by Account Payee Cheque only on proper verification and identification at the earliest and without any delay. Rule is made absolute to the aforesaid extent in each of the Revision Applications.
[M.R. SHAH, J.] rafik