1. Rule. Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 – State and Mr.Sharif H. Shaikh, learned advocate waives the service of notice of rule on behalf of the the respondent No.2 – original complainant.
2. 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 and the entire amount under the cheque in question has been paid up, and even Rs.50,000/- more is deposited with the registry of this Court (towards the interest etc. on the cheque amount) and as the petitioner is ready and willing to pay/deposit 15% amount of the total amount under cheque in question towards cost to be deposited with the Gujarat State Legal Services Authority, present Criminal Revision Application is taken up for final hearing today.
3. 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 of conviction and sentence dtd.3/12/2010 passed by the learned Metropolitan Magistrate, N.I.Act Court No.5, Ahmedabad in Criminal Case No. 3050 of 2009 convicting the petitioner - original accused for the offence punishable under section 138 of the Negotiable Instruments Act and directing the petitioner to undergo Simple Imprisonment for a period of one year with fine of Rs.2000 and in default to undergo further Simple Imprisonment for a period of 30 days as well as the Judgement and Order dtd.9/8/2012 passed by the learned appellate court - learned Additional Sessions Judge, Court No.14, Ahmedabad in Criminal Appeal No.506 of 2010, by which the learned appellate court has dismissed the said appeal preferred by the petitioner herein – original accused confirming the Judgement and Order of conviction and sentence passed by the learned trial court.
4. Today when the present Criminal Revision Application is taken up for final hearing, Mr.Makbul Mansuri, learned advocate appearing for Mr.MTM Hakim, learned advocate appearing on behalf of the petitioner herein - original accused has stated at the bar that the petitioner - original accused has already paid deposited a sum of Rs.1 Lac (cheque amount) and has brought Demand Draft of a further sum of Rs.50,000 which shall be deposited with the registry during the course of the day and the entire amount i.e. Rs.1,50,000/- be permitted to be withdrawn by the respondent No.2 – original complainant. He has also stated at the bar that he has already deposited 15% of the cheque amount i.e. Rs.15,000 with the Gujarat State Legal Services Authority today by Demand Draft, which the petitioner is required to deposit pursuant to 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. Therefore, it is requested to permit the petitioner - original accused to compound the offence, for which he has been convicted, and consequently to quash and set aside the impugned Judgement and Order of conviction and sentence passed by both the courts below.
5. Mr.Makbul Mansuri, learned advocate appearing on behalf of the petitioner herein – original accused has stated at the bar that if the respondent No.2 – original complainant is permitted to withdraw the amount of Rs.1,50,000/- which the petitioner has deposited with the registry of this Court, the petitioner - original accused has no objection. Mr.Sharif Shaikh learned advocate appearing on behalf of the respondent No.2 – original complainant has stated at the bar that inspite of the above and on permitting the original complainant to withdraw the aforesaid amount of Rs.1,50,000/- towards full and final settlement of the claim against the petitioner under the cheque in question, respondent No.2 herein has no objection in permitting the petitioner herein – original accused to compound the offence for which he has been convicted.
6. Having heard learned advocates appearing on behalf of the respective parties and considering the fact that by now the petitioner - original accused has deposited Rs.1,50,000/- with the registry of this Court (against the cheque amount of Rs.1 Lac only) and has also deposited Rs.15,000 being 15% of the cheque amount with the Gujarat State Legal Service Authority towards the costs, to be deposited as observed by the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) and as the respondent No.2 - original complainant has no objection if the petitioner - original accused is permitted to compound the offence by permitting the the respondent No.2 – original complainant to withdraw the amount of Rs.1,50,000/- deposited by the petitioner - original accused 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 for which he has been convicted for the offence under Section 138 of the N.I.Act and consequently, both the impugned judgement and orders, more particularly the judgement and order of conviction and sentence dtd.3/12/2010 passed by the learned Metropolitan Magistrate, N.I.Act Court No.5,
Ahmedabad in Criminal Case No. 3050 of 2009 as well as the Judgement and Order dtd.9/8/2012 passed by the learned Additional Sessions Judge, Court No.14, Ahmedabad in Criminal Appeal No.506 of 2010, are hereby quashed and set aside. Registry is hereby directed to pay Rs.1,50,000/- deposited by the petitioner herein - original accused with the registry of this Court (which is reported to be deposited by the petitioner herein by Demand Drafts on 1/9/2012 and 10/9/2012) to the respondent No.2 herein – original accused by Account Payee Cheque only. The cheque be handed over to the respondent No.2 or his advocate, on proper verification and identification. Consequently, it is ordered that if the petitioner herein – original accused is in jail pursuant to the impugned judgement and orders passed by both the courts below, he shall be released forthwith if not required in any other case. Rule is made absolute accordingly.
Direct Service is permitted.
[M.R. SHAH, J.] rafik