Date : 17/09/2012 1. Rule. Ms.Chetna Shah, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.1 – State and Mr.K.I. Kazi, 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 parties have settled the dispute amicably and the petitioner has been paid the cheque amount and as the 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, 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 to quash and set aside the judgement and order of conviction and sentence passed by the learned Metropolitan Magistrate, N.I.Act, Court No.5, Ahmedabad in Criminal Case No.554 of 2008 (Old Case No.281 of 2008) dtd. 30/11/2009, by which the learned Metropolitan Magistrate, Ahmedabad has convicted the petitioner - original accused for the offence under section 138 of Negotiable Instruments Act as well as the judgement and order dtd.27/4/2012 passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad City in Criminal Appeal No.329 of 2009, by which the learned appellate court has dismissed the said appeal preferred by the petitioner - 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, the learned advocate appearing on behalf of the respective parties, more particularly Mr.Kazi, learned advocate appearing on behalf of the respondent No.2 – original complainant as well as the learned advocate appearing on behalf of the petitioner - original accused have jointly stated at the bar that the petitioner - original accused as well as the respondent No.2 – original complainant have settled the dispute amicably and the petitioner - original accused has paid the entire cheque amount to the respondent No.2 – original complainant.
5. Mr.Ansari, learned advocate appearing on behalf of the petitioner – original accused has stated at the bar that the petitioner - original accused has already deposited a sum of Rs.52,500/- being 15% of the cheque amount with the Gujarat State Legal Services Authority, in view of 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, so as to enable the petitioner - original accused to compound the offence for which he has been convicted. 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 Orders passed by both the courts below.
6. Mr.K.I. Kazi, learned advocate appearing on behalf of the respondent No.2 – original complainant, under the instructions of the respondent No.2 – original complainant has stated at the bar that the 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.
7. In fact, respondent No.2 – original complainant has filed Affidavit submitting that he has no objection if the petitioner herein – original accused is permitted to compound the offence as the parties have settled the dipsute amicably.
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 and considered the impugned Judgement and Orders passed by both the courts below. It appears that the petitioner - original accused has been convicted for the offence under section 138 of the Negotiable Instruments Act. It is reported that the parties have settled the dispute amicably and the cheque amount has been paid to the respondent No.2 – original complainant and even the petitioner has also deposited 15% of the cheque amount which the petitioner - 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 him to compound the offence for which he has been convicted. As stated above, respondent No.2 – original complaint has no objection if the petitioner herein - original accused is permitted to compound the offence for which he has been convicted.
10. Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra), the petitioner – original accused is hereby permitted to compound the offence committed by the petitioner – original accused under Section 138 of the N.I.Act and both the impugned judgement and orders, more particularly the judgement and order passed by the learned Metropolitan Magistrate, N.I.Act, Court No.5, Ahmedabad in Criminal Case No.554 of 2008 (Old Case No.281 of 2008) dtd. 30/11/2009 as well as the judgement and order passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad City in Criminal Appeal No.329 of 2009 dtd.27/4/2012, 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. Rule is made absolute accordingly.
[M.R. SHAH, J.] rafik