Date : 06/09/2012 1. Rule. Mr.Pankaj Baxi, an authorised person of the respondent No.2, who has filed the original complaint against the petitioner for the offence under section 138 of the Negotiable Instruments Act is personally present in the Court, waives the service of notice on behalf of the respondent No.2 and Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.2.
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 and entire amount under the cheque in question, for which judgement and order of conviction has been passed, has been fully paid up 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 dtd.29/9/2009 passed by the learned Metropolitan Magistrate, N.I.Act Court No.4, Ahmedabad in Criminal Case No. 1468 of 2008 (Old Case No.9032 of 2008) by which the learned trial court has convicted the petitioner - original accused for the offence punishable under section 138 of the Negotiable Instruments Act as well as the Judgement and Order dtd.9/3/2012 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in Criminal Appeal No.254 of 2009.
4. Today when the present Criminal Revision Application is taken up for final hearing, Mr.Dipen Desai, learned advocate appearing on behalf of the petitioner - original accused has stated at the bar that the petitioner - original accused and the respondent No.2 – original complainant have settled the dispute amicably and the petitioner has already paid an amount of Rs.13 Lacs to the respondent No.2 – original complainant (against the cheque amount of Rs.9,81,586). He has also produced on record deed of settlement entered into between the petitioner and the respondent No.2 as well as copy of the No Due Certificate issued by the respondent No.2 – original complainant, which are ordered to be taken on record.
5. Mr.Pankaj Baxi, an authorised officer of the respondent No.2, who is personally present in the court has confirmed the settlement between the petitioner - original accused and the respondent No.2 – original complainant and has also confirmed that an amount of Rs.13 Lacs has been paid to the respondent No.2 and has no objection if the petitioner is permitted to compound the offence for which he has been convicted.
6. Mr.Desai, learned advocate appearing on behalf of the petitioner – original accused has also stated at the bar that the petitioner has also deposited a sum of Rs.1,47,240/- being 15% of the cheque amount towards the cost while permitting the petitioner to compound the offence, 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. Under the circumstances, Mr.Desai, learned advocate appearing on behalf of the petitioner - original accused has requested to permit the petitioner - original accused to compound the offence, for which he has been convicted, to which the respondent No.2 has no objection.
7. Having heard learned advocates appearing on behalf of the respective parties and considering the subsequent development and settlement between the original complainant – respondent No.2 and original accused – petitioner and considering the fact that against the cheque amount of Rs.13 Lacs to the respondent No.2 towards under the cheque in question, the petitioner – original accused has deposited Rs.1,47,240 with the Gujarat State Legal Services Authority being 15% of the cheque amount, towards costs, to be deposited as observed by the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) 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 under Section 138 of the N.I.Act and consequently, both the impugned judgement and orders, more particularly judgement and order dtd.29/9/2009 passed by the learned Metropolitan Magistrate, N.I.Act Court No.4, Ahmedabad in Criminal Case No. 1468 of 2008 (Old Case No.9032 of 2008) by which the learned trial court has convicted the petitioner - original accused for the offence punishable under section 138 of the Negotiable Instruments Act as well as the Judgement and Order dtd.9/3/2012 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in Criminal Appeal No.254 of 2009, are hereby quashed and set aside. 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