IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 566 of 2010 With CRIMINAL REVISION APPLICATION NO. 627 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH ================================================================
================================================================ NANDKISHORE RAMJANAM PAL Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
MR MATAFER R PANDE, ADVOCATE for the Applicant(s) No. 1 MR. RY DHIVARE, ADVOCATE for the Applicant(s) No. 1 MR HARDIK A DAVE, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 07/11/2012 COMMON ORAL JUDGEMENT
[1.0] RULE so far as Criminal Revision Application No.627 of 2010 is concerned. Shri M.R. Pandey, learned advocate waives service of notice of Rule on behalf of respondent No.2 original complainant and Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 State of Gujarat.
[1.1] As common question of law and facts arise in both these Revision Applications and as such they are cross Revision Applications, both these Revision Applications are heard, decided and disposed of together by this common judgment and order.
[2.0] Criminal Revision Application No.566 of 2010 has been preferred by the applicant herein original complainant to quash and set aside the impugned judgment and order dated 15.10.2010 passed by the learned Appellate Court learned Additional Sessions Judge, Surat in Criminal Appeal No.17 of 2009 by which the learned Appellate Court has partly allowed the said Appeal preferred by the respondent No.2 herein original accused by modifying the judgment and order of conviction and sentence dated 19.03.2009 passed by the learned JMFC, Surat in Criminal Case No.25001 of 2006 to the extent reducing the sentence from 1 year SI to 15 days SI and confirming the judgment and order of conviction passed by the learned trial Court and confirming the order passed by the learned trial Court directing the accused to pay Rs.50,000/ towards compensation to the original complainant.
[2.1] Criminal Revision Application No.627 of 2010 has been preferred by the applicant herein original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 19.03.2009 passed by the learned JMFC, Surat in Criminal Case No.25001 of 2006 as well as the impugned judgment and order dated 15.10.2010 passed by the learned Appellate Court learned Additional Sessions Judge, Surat in Criminal Appeal No.17 of 2009 by which the learned Appellate Court has dismissed the said Appeal preferred by the original accused confirming the judgment and order of conviction passed by the learned trial Court.
[3.0] That the applicant herein original accused of Criminal Revision Application No.627 of 2010 has been convicted by the learned JMFC, Surat for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") for dishonor of the cheque of Rs.50,000/, by judgment and order of conviction and sentence dated 19.03.2009 passed in Criminal Case No.25001 of 2006. That the learned Magistrate while convicting the applicant herein original accused for the offence under Section 138 of the NI Act imposed a sentence of 1 year SI with fine of Rs.2000/ and in default to undergo further one month SI. The learned Magistrate also passed an order directing the accused to pay Rs.50,000/ to the original complainant towards compensation under Section 357(3) of the Code of Criminal Procedure, 1973.
[3.1] Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned JMFC, Surat, the original accused preferred Criminal Appeal No.17 of 2009 before the learned Sessions Court, Surat. That in the meantime the accused deposited Rs.50,000/ cheque amount and therefore, it was requested to reduce the sentence. That solely on the ground that the applicant herein original accused has paid/deposited Rs.50,000/ with the Sessions Court, the learned Additional Sessions Judge, Surat by impugned judgment and order dated 15.10.2010 has partly allowed the said Appeal modifying the judgment and order passed by the learned JMFC, Surat in Criminal Case No.25001 of 2006 to the extent reducing the sentence from 1 year SI to 15 days SI and confirmed the rest of the judgment and order of conviction as well as the compensation.
[3.2] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Surat in reducing the sentence from 1 year SI to 15 days SIT, the original complainant has preferred the present Criminal Revision Application No.566 of 2010. That thereafter the original accused has preferred Criminal Revision Application No.627 of 2010 challenging the impugned judgment and order passed by the learned trial Court confirmed by the learned Appellate Court convicting the accused for the offence under Section 138 of the NI Act.
[4.0] Shri Pandey, learned advocate appearing on behalf of the applicant of Criminal Revision Application No.566 of 2010 original complainant has vehemently submitted that as such the learned Magistrate has materially erred in reducing the sentence from 1 year SI to 15 days SI solely on the ground that after the conviction the original accused has deposited the entire cheque amount. It is submitted that as such the original accused has not deposited the cheque amount but has deposited Rs.50,000/ as per the judgment and order of conviction and sentence passed by the learned trial Court and as per the order passed by the learned Magistrate awarding compensation to the original complainant. It is submitted that as such even otherwise merely because after the conviction the accused has deposited the cheque amount and/or even paid the compensation, is no ground to reduce the sentence from 1 year SI to 15 days SI.
[5.0] Shri Hardik Dave, learned advocate appearing on behalf of the original accused has stated at the Bar that as such the applicant original accused has already undergone the sentence of 15 days SI as per the impugned judgment and order passed by the learned Appellate Court. He has stated at the Bar that even the original accused is ready and willing to pay some more amount towards compensation. Therefore, he has stated at the Bar that as such the applicant original accused is now not challenging the impugned judgment and order of conviction passed by the learned trial Court confirmed by the learned Appellate Court, however, has requested to maintain the sentence of 15 days SI as ordered by the learned Appellate Court by enhancing the amount of compensation from Rs.50,000/ to Rs.70,000/.
[6.0] Shri Pandey, learned advocate appearing on behalf of the original complainant has stated at the Bar that if the amount of compensation is suitably enhanced to Rs.70,000/ (instead of Rs.50,000/ as awarded by the learned trial Court and confirmed by the learned Appellate Court), he has no objection if the sentence imposed by the learned Appellate Court is confirmed.
[7.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned judgment and order passed by the learned trial Court as well as the learned Appellate Court. At the outset it is required to be noted that the learned trial Court while convicting the original accused for the offence under Section 138 of the NI Act has directed the original accused to undergo sentence of 1 year SI with fine of Rs.2000 and in default to undergo further one month SI and also has directed the original accused to pay Rs.50,000/ to the original complainant towards compensation under Section 357(3) of the Code of Criminal Procedure, 1973. It appears that after the conviction and sentence, the original accused deposited Rs.50,000/ which the original accused was directed to deposit towards compensation. Considering the above, the learned Appellate Court has reduced the sentence from one year SI to 15 days SI which as such cannot be sustained. Merely because the amount of compensation as ordered by the learned trial Court is deposited by the accused, is no ground to reduce the sentence and that too from one year to 15 days SI. However, in view of the broad consensus between the learned advocates appearing on behalf of respective parties recorded herein above that if the amount of compensation is increased from Rs.50,000/ to Rs.70,000/, which the original accused to pay/deposit with the learned trial Court and to confirm the judgment and order passed by the learned Appellate Court reducing the sentence to 15 days SI, the present Revision Applications can be disposed of.
[8.0] In view of the above, Criminal Revision Application No.566 of 2010 is hereby partly allowed and the impugned judgment and order dated 15.10.2010 passed by the learned Additional Sessions Judge, Surat in Criminal Appeal No.17 of 2009 is hereby modified to the extent enhancing the amount of compensation from Rs.50,000/ to Rs.70,000/. It is reported that original accused has already deposited a sum of Rs.50,000/ with the trial Court and therefore, now the applicant original accused to deposit the balance amount of Rs.20,000/ with the trial Court on or before 15.01.2013 as agreed and on such deposit the original complainant is permitted to withdraw the entire amount (Rs.50,000/ deposited earlier as well as Rs.20,000/ to be deposited on or before 15.01.2013) which shall be paid to the original complainant by account payee cheque at the earliest. Rule is made absolute to the aforesaid extent so far as Criminal Revision Application No.566 of 2010 is concerned.
[8.1] In view of the order passed in Criminal Revision Application No.566 of 2010 and as learned advocate appearing on behalf of the applicant original accused is now not challenging the judgment and order of conviction passed by the learned trial Court confirmed by the learned Appellate Court, Criminal Revision Application No.627 of 2010 is dismissed as withdrawn. Rule is discharged. Direct service is permitted.
Sd/-
(M.R.Shah, J.) Menon