Rule.
Mr. L.B.Dabhi, learned APP waives service of Rule on behalf of respondent no. 1 and Mr. G.P.Bagel, learned advocate waives service of rule for respondent no. 2.
The matter is taken up for final hearing since the parties have settled the matter, for which, proceedings under section 138 of the Negotiable Instrument Act (for short, "the Act") were initiated by respondent no. 2 original complainant.
Mr.
M.K.Patel, learned advocate appearing for the applicant has produced certified copy of order dated 19/7/2012 passed by learned Additional Sessions Judge in Criminal Appeal no. 66/2010 below exh 41, by which, the accused - who surrendered himself, has been taken in the judicial custody and sent to Sub- Jail, Idar at Himmatnagar. The said order is taken on record.
Present respondent no. 2 filed the complaint in the Court of learned Additional Chief Judicial Magistrate, Idar under the provision of section 138 of the Act and alleged that the cheque of Rs. 3,50,000/-, which was given by the accused, was not realized when he deposited the same in the Bank. The cheque was returned having endorsement of "Opening Balance Insufficient". Therefore, after issuing the notice, the complaint was filed before the Court. By the judgment and order dated 13/5/2010, learned Additional Chief Judicial Magistrate and learned Additional Senior Civil Judge, Idar convicted the accused and sentenced him for one year simple imprisonment and imposed fine of Rs. 10,000/- and in default simple imprisonment of two months was imposed to the accused. The said judgment was challenged by the appellant accused in the Court of learned Additional Sessions Judge by way of filing Criminal Appeal no. 66/2010, which came to be dismissed vide judgment and order dated 11/4/2012 and confirmed the sentence imposed by the learned Magistrate.
By way of present Revision Application, the original accused has challenged both, i.e. the judgment and award passed by the Trial Court. Today, the consent terms arrived in between the appellant - accused and respondent no. 2 complainant is produced on record, by which, they have settled the matter. The same is taken on record.
In view of the settlement arrived at between the parties, I am of the opinion that the case is being compoundable one, no fruitful purpose will be served if the accused is sent to serve sentence imposed by the Trial Court. Hence, the Revision Application is allowed. The judgment and order passed by learned Additional Chief Judicial Magistrate and learned Additional Senior Civil Judge, Idar dated 13/5/2010 & judgment and order dated 11/4/2012 passed by learned Additional Sessions Judge are hereby quashed and set aside.
Rule is made absolute. Since the applicant has surrendered before the Jail Authority, he shall be released forthwith. Direct service is permitted.
(A.J.DESAI, J) *asma Top