1.0 Leave to amend by joining Superintendent, Central Jail Sabarmati, Ahmedabad.
2.0 Rule. Shri Desai, learned advocate waives service of notice of Rule on behalf of the respondent no.1 and Ms. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent State. In the facts and circumstances of the case and as it is reported that parties have settled the disputes amicably and applicant has paid the amount to the original complainant and as petitioner is praying for compound the offence, present Criminal Revision Application is taken up for final hearing today.
3.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the petitioner hereinoriginal accused to quash and set aside impugned judgment and order of conviction and sentence passed by the learned JMFC, Gandhinagar dated 7.8.2008 passed in Criminal Case No. 1635 of 2002 by which the learned trial Court has convicted the petitioner hereinoriginal accused for the offence under Section 138 of the Negotiable Instruments Act for dishonoure of the cheque of Rs.33,542/. The petitioner has also prayed to quash and set aside the impugned judgment and order passed by the learned Appellate Court learned Sessions Judge, Gandhinagar passed in Criminal Appeal No.40 of 2008 dated 16.12.2008, by which, the learned Appellate Court has dismissed the said appeal.
3.1. Today when the present Revision Application is taken up for hearing, Shri Baqui, learned advocate for the petitioneroriginal accused has stated at the bar that the petitioner has already paid the cheque amount with the recovery charge i.e. Rs.34,928/ to the original complainant on 22.10.2012. He has also stated at the bar that 15% of the cheque amount i.e. Rs.5031/ is also deposited with the Gujarat State Legal Services Authority, which petitioner is required to deposit in view of the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu v. Sayed Babalal H reported in (2010) 5 SCC 663 while praying to permit the petitioner to compound the offence, for which he has been convicted.
4.0 Shri Baqui, learned advocate for the petitioneroriginal accused has stated at the bar that respondent no.1 herein original complainant has no objection, for which he has been convicted. Therefore, it is requested to permit the petitioner to compound the offence and consequently quashed and set aside the impugned judgment and order passed by both the Courts below.
5.0 Shri Desai, learned advocate for the respondent no.1 has confirmed that the petitioner has paid cheque amount with the recovery charge i.e. Rs. 34,928/ to the original complainant. He has stated under the instruction from respondent no.1 that in view of the above, he has no objection if the petitioner original accused is permitted to compound to offence for which he is continued for the offence under Section 138 of the Negotiable Instruments Act.
6.0 Shri Shah, learned Additional Public Prosecutor for the respondent State has requested to pass appropriate order in view of the above facts and circumstances of the case.
7.0 Heard Shri Baqui, learned advocate for the petitioner original accused, Shri Desai, learned advocate for the respondent no.1 and Ms. Shah, learned Additional Public Prosecutor for the respondent State. It is reported that the parties have settled the dispute amicably and the petitioner hereinoriginal accused has already paid the entire cheque amount with recovery charge i.e. in all Rs.34,928/ with the respondent no.1 original complainant. It is also reported that 15% of the cheque amount i.e. Rs.5031/ is also deposited with the Gujarat State Legal Services Authority, which petitioner is required to deposit in view of the decision of Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) while permitting the petitioner to compound the offence for which he has been convicted. As recorded herein above, original complainant has no objection if the petitioner is permitted to compound the offence for which he has been convicted.
8.0 Under the circumstances, the petitioner original accused can be permitted to compound the offence, for which he has been convicted. Consequently the petitioner hereinoriginal accused is permitted to compound the offence, for which he has been convicted by the learned trial Court confirmed by the learned Appellate Court. Consequently, impugned judgment and order of conviction and sentence passed by the learned JMFC, Gandhinagar dated 7.8.2008 passed in Criminal Case No. 1635 of 2002 as well as impugned judgment and order passed by the learned Appellate Court learned Sessions Judge, Gandhinagar passed in Criminal Appeal No.40 of 2008 dated 16.12.2008 are hereby quashed and set aside. The petitioner be released forthwith if not required in any other case. Rule is made absolute to the aforesaid extent. Direct service is permitted. Yadi of the present order be sent to the Superintendent, Central Jail Sabarmati, Ahmedabad.
( M. R. Shah, J. ) “kaushik”