1. As common question of law and facts arise in both these Revision Applications and as such they are cross Revision Applications filed by the respective parties, both these Revision Applications are heard, decided and disposed of today by this common judgement and order.
2. Criminal Revision Application No.477 of 2004, under Section 397 read with Section 401 of the Code of Criminal Procedure, has been preferred by the petitioner – original accused to quash and set aside the judgement and order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Bhavnagar in Criminal Case No.1760 of 1998 dtd.29/9/2001 by which the the learned trial court – learned Magistrate has convicted the petitioner - original accused for the offence under section 138 of Negotiable Instruments Act as well as the judgement and order passed by the learned appellate court - learned Additional Sessions Judge, FTC No.5, Bhavnagar in Criminal Appeal No. 70 of 2001 dtd.25/6/2004, by which the learned appellate court partly allowed the said appeal modifying the Judgement and Order of conviction passed by the learned Judicial Magistrate (First Class) - learned trial court to the extent of sentence, however, confirming the conviction convicting the petitioner herein – original accused for the offence punishable under section 138 of the Negotiable Instruments Act.
3. Criminal Revision Application No. 591 of 2004, under Section 397 read with Section 401 of the Code of Criminal Procedure, has been preferred by the petitioner herein - original complainant challenging the impugned Judgement and Order passed by the learned appellate court - learned Additional Sessions Judge, FTC No.5, Bhavnagar in Criminal Appeal No. 70 of 2001 dtd.25/6/2004, by which the learned appellate court has partly allowed the said appeal modifying the Judgement and Order of conviction and sentence passed by the learned Magistrate - learned trial court to the extent of quashing and setting aside the conviction and sentence passed by the learned Magistrate – learned trial court and passing order of compensation only.
4. Today when both these Revision Applications are taken up for final hearing, Mr.R.D. Dave, learned advocate appearing on behalf of the accused has stated at the bar that now the original accused has paid the entire amount under the cheque in question with interest at the rate of 6% per annum and even cost of Rs.15,000/-. It is submitted that as such the original accused has paid Rs.15,791/- in excess to the complainant over and above the cheque amount. It is submitted that thus, parties have settled the dispute amicably and now nothing is due and payable by the original accused to the original complainant towards the cheque in question. He has submitted that in view of the above, the original complainant has no objection if the petitioner - original accused is permitted to compound the offence for which he has been convicted.
5. Mr.Dave, learned advocate appearing on behalf of the original accused has also stated at the bar that even the original accused has deposited 15% of the cheque amount with the Gujarat State Legal Services Authority, which the original accused is required to deposit as per 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 so as to enable the petitioner herein – original accused to compound the offence for which he has been convicted. Therefore, he has requested to permit the original accused to compound the offence for which he has been convicted.
He has also requested to pass appropriate order directing the original complainant to return Rs.15,791/- which the original accused has paid to the original complainant in excess.
6. Ms.Prayanka Patel, learned advocate appearing for Dr.Rajesh Acharya, learned advocate appearing on behalf of the original complainant has confirmed that the original complainant has been paid Rs.15,791/- by the original accused in excess and for which an appropriate order can be passed. She has also stated at the bar that now nothing is due and payable by the original accused to the original complainant under the cheque in question.
7. Ms.Priyanka Patel, learned advocate appearing on behalf of the original complainant has also stated at the bar under the instruction from the original complainant that the original complainant has no objection if the original accused is permitted to compound the offence for which he has been convicted. In view of the above, it is requested to dispose of the Criminal Revision Application No. 591 of 2004 as the same does not survive.
8. Ms.Chetna Shah, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
9. Heard the learned advocates appearing on behalf of the respective parties at length.
10. From the above, it appears and it is reported that now the parties have settled the dispute amicable and the entire amount under the cheque in question along with interest at the rate of 6% per annum from the date of issuance of the cheque and even Rs.15,000/- towards the costs of litigation, has been paid by the original accused to the original complainant. It is also reported that as such Rs.15,791/- is paid in excess to the original complainant which the original accused is required to return to the original complainant. It is also reported that the original accused has also deposited 15% of the cheque amount with the Gujarat State Legal Services Authority which the 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 the original accused to compound the offence for which he has been convicted.
11. In view of the above and considering the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) petitioner of Criminal Revision Application No. 477 of 2004 – original accused, is hereby permitted to compound the offence for which he has been convicted and consequently, the impugned judgement and order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Bhavnagar in Criminal Case No.1760 of 1998 dtd.29/9/2001 as well as the judgement and order passed by the learned appellate court - learned Additional Sessions Judge, FTC No.5, Bhavnagar in Criminal Appeal No. 70 of 2001 dtd.25/6/2004, qua directing the original accused to pay compensation to the original accused, are hereby quashed and set aside. Consequently, if the petitioner herein - original accused is in jail, he shall be released forthwith, if not required in any other case.
12. In view of disposal of the Criminal Revision Application No.477 of 2004, no order in the Criminal Revision Application No. 591 of 2004 and the same stands disposed of accordingly.
It is reported that the original accused has paid Rs.15,791/- in excess to the original accused, which is confirmed by the learned advocate appearing on behalf of the original complainant and therefore, as agreed, the original complainant to return the said excess amount of Rs.15,791/- to the original accused within a period of two weeks from today.
Rule is made absolute accordingly so far as Criminal Revision Application No.477 of 2004 is concerned. Rule is discharged so far as Criminal Revision Application No.591 of 2004 is concerned.
Direct Service is permitted.
[M.R. SHAH, J.] rafik