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.Hriday Buch, learned advocate waives the service of notice of rule on behalf of 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 the parties have settled the dispute amicably and the entire cheque amount has been paid and it is agreed by the petitioner - original accused to pay interest on the principal amount of Rs.2,97,000/- at the rate of 7.5% per annum i.e. Rs.3,13,706/- in three equal installments as per the undertaking filed today and it is requested to permit the petitioner - original accused to compound the offence, present Revision Application is taken up for final hearing today.
3. Present Revision Application, 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 impugned judgement and order of conviction and sentence passed by the learned trial court - learned Judicial Magistrate (First Class), Bharuch in Criminal Case No.49731 of 1998 dtd.13/9/2005 convicting the petitioner - original accused for the offence under section 138 of the Negotiable Instruments Act for the dishonour of the cheque for an amount of Rs.2,97,000/- as well as the impugned judgement and order passed by the learned appellate court - learned Additional Sessions Judge, Bharuch in Criminal Appeal No.22 of 2005 dtd.8/4/2011, by which the learned appellate court has dismissed the said appeal confirming the judgement and order passed by the learned trial court.
4. Today when the present Revision Application is taken up for final hearing, Mr.Arpit Kapadia learned advocate appearing on behalf of the petitioner – original accused has stated that the petitioner – original accused has deposited in all Rs.2,97,000/- with the learned trial court which would be the cheque amount. He has also stated at the bar that the parties have settled the dispute amicably and the petitioner - original accused has agreed to pay / deposit a further sum of Rs.3,13,706/- (being interest on Rs.2,97,000/- at the rate of 7.5% per annum for 169 months) in three equal installments and the first installment to be paid on or before 30/12/2012, second installment to be paid on or before 28/2/2013 and third and last installment to be paid on or before 30/4/2013. He has also stated at the bar that the respondent No.2 – original complainant be permitted to withdraw the amount of Rs.2,97,000/- which the petitioner has deposited in the court below. He has also stated at the bar that the petitioner has filed a separate undertaking, affirmed by the petitioner stating that he shall pay / deposit a further sum of Rs.3,13,706/- towards interest on Rs.2,97,000/- in three equal installments, as stated above. He has also stated at the bar that the petitioner shall see to it that the aforesaid amount is deposited with the learned trial court in three equal installments, as stated above, failing which not only the petitioner can be saddled with proceedings under the Contempt of Court Act and for breach of undertaking, and even conviction passed by the learned trial court stands. He has also stated at the bar that the petitioner has also deposited a further sum of Rs.44,550/- being 15% of the cheque amount with the Gujarat State Legal Services Authority at Ahmedabad which the petitioner - original accused is required to deposit in view of the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu Vs. 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.
5. Mr.Kapadia, learned advocate appearing on behalf of the petitioner – accused has also stated at the bar that in view of the above, respondent No.2 – original complainant has no objection if the petitioner – original accused is permitted to compound the offence for which he has been convicted.
6. Mr.Buch, learned advocate appearing on behalf of the respondent No.2 – original complainant has stated at the bar under the instructions from the respondent No.2 – original complainant that the original complainant has no objection if the petitioner - original accused is permitted to compound the offence for which he has been convicted on permitting the respondent No.2 – original complainant to withdraw the amount of Rs.2,97,000/-, which the petitioner has deposited with the learned trial court and on permitting the respondent No.2 – original complainant to withdraw the amount of Rs.3,13,706/- which the petitioner is required to deposit as per the undertaking filed by him on 29/10/2012. However, has requested to make suitable observation that in case the petitioner does not deposit further amount of Rs.3,13,706/- towards interest at the rate of Rs.7.5% per annum on the principal amount of Rs.2,97,000/- from the date of issuance of the cheque, in that case, over and above the proceedings which can be initiated against the petitioner for breach of undertaking, the impugned judgement and order of conviction and sentence passed by the learned trial court affirmed by the learned appellate court stands.
7. Ms.Chetna Shah, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
8. Heard the learned advocates appearing on behalf of the respective parties at length.
9. From the aforesaid, it appears that the parties have settled the dispute amicably. That the petitioner - original accused has already deposited a sum of Rs.2,97,000/- with the learned trial court. That under the agreement and as per the undertaking filed by the petitioner - original accused dtd.29/10/2012 which is directed to be taken on record, the petitioner - original accused has undertaken to deposit a further sum of Rs.3,13,706/- being interest on 2,97,000/- at the rate of 7.5% per annum for 169 months in three equal installments and first installment to be paid on or before 30/12/2012, second installment to be paid on or before 28/2/2013 and third and last installment to be paid on or before 30/4/2013. It is also reported that the petitioner - original accused has also deposited Rs.44,550/- being 15% of the cheque amount with the Gujarat State Legal Services Authority which the petitioner - original accused is required to deposit in view of the decision of the Hon'ble Supreme Court as per the decision of the Hon’ble Supreme Court in the case of Damodar S. Prabhu (supra) while requesting the petitioner - original accused to permit him to compound the offence. As stated above, in view of the above, respondent No.2 – original accused has no objection if the petitioner - original accused is permitted to compound the offence for which he has been convicted, subject to what is stated hereinabove.
10. In view of the above and considering the aforesaid taken by the respective parties and considering the aforesaid decision of the Hon’ble Supreme Court, the petitioner - original accused can be permitted to compound the offence for which he has been convicted and accordingly, present Criminal Revision Application is allowed and the petitioner herein – original accused is permitted to compound the offence for which he has been convicted and consequently, the impugned order passed by the learned trial court - learned Judicial Magistrate (First Class), Bharuch in Criminal Case No.49731 of 1998 dtd.13/9/2005 as well as the impugned judgement and order passed by the learned appellate court - learned Additional Sessions Judge, Bharuch in Criminal Appeal No.22 of 2005 dtd.8/4/2011, are hereby quashed and set aside. If the petitioner – original accused is in jail he shall be released forthwith, if not required in any other case. However, it is observed and made clear that in case the petitioner herein – original accused fails to deposit a further sum of Rs.3,13,706/- being interest on Rs.2,97,000/- at the rate of 7.5% per annum, in three equal installments, as stated above, as per the undertaking filed by him, the impugned judgement and order of conviction and sentence passed by the learned trial court confirmed by the learned appellate court stands. It is further observed that will be open for the respondent No.2 herein – original complainant to withdraw the amount of Rs.2,97,000/- deposited by the petitioner herein – original accused with the learned trial court and the concerned Court to pay the said amount to the respondent No.2 herein – original complainant by Account Payee Cheque at the earliest.
It is further observed that as and when a further sum of Rs.3,13,706 /- being interest on Rs.2,97,000/- at the rate of 7.5% per annum, is deposited by the petitioner herein – original accused, it will be open for the respondent No.2 herein – original complainant to withdraw the same, and the same shall be paid to the respondent No.2 herein – original complainant by Account Payee Cheque.
Rule is made absolute accordingly.
Direct Service is permitted.
[M.R. SHAH, J.] rafik