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 respondent No.2 – original – complainant, who is personally present in the Court, waives the service of notice of rule.
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 already deposited the entire cheque amount and has also deposited a further sum of Rs.7500/- towards costs of the present Revision Application with the Registry of this Court as per the earlier order passed by this Court dtd.13/9/2012 and has also deposited a further sum of Rs.32,000 towards interest on the cheque amount, which can be permitted to be withdrawn by the respondent No.2 – original complainant and as it is reported that the petitioner proposes to compound the offence for which he has been convicted on deposit of 15% of the cheque amount with the Gujarat State Legal Servicea Authority (which is reported to be deposited on 26/9/2012), with the consent of the learned advocates appearing on behalf of the petitioner - original accused and the respondent No.2 – original complainant, present 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.1859 of 2009 dtd.18/8/2010, by which the learned Magistrate has convicted the petitioner - original accused for the offence under section 138 of Negotiable Instruments Act as well as the judgement and order passed by the learned Additional Sessions Judge, Court No.15, City Civil and Sessions Court, Ahmedabad, in Criminal Appeal No.348 of 2010 dtd.31/8/2012, by which the learned appellate court has dismissed the said appeal 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, Mr.Chauhan, learned advocates appearing on behalf of the petitioner - original accused has stated at the bar that the petitioner - original accused has deposited with the registry a total sum of Rs.1,39,500/- being amount under the cheque in question; towards costs as well as interest on the cheque amount, which can be permitted to be withdrawn by the respondent No.2. He has also sated at the bar that the petitioner - original accused has also deposited 15% of the cheque amount i.e. Rs.15,000 with the Gujarat State Legal Services Authority which the petitioner is required to deposit pursuant to the Judgement and Order passed by 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 herein – 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 and consequently quash and set aside the impugned Judgement and Orders passed by both the courts below convicting the petitioner herein for the offence under section 138 of the Negotiable Instruments Act.
5. The respondent No.2 herein – original accused is personally present in the Court and has stated at the bar that if he is permitted to withdraw the cheque amount of Rs.1,39,500/- which the petitioner has deposited, he has no objection if the petitioner is permitted to compound the offence for which he has been convicted.
6. Having heard learned advocates appearing on behalf of the respective parties and considering the stand taken by the concerned parties recorded hereinabove and as the petitioner has already deposited a sum of Rs.1,39,500 with the Registry towards the cheque amount + costs of the present Revision Application + interest at the rate of 9% per annum on the cheque amount and has also deposited 15% of the cheque amount i.e. Rs.15,000/- with the Gujarat State Legal Services Authority which the petitioner is required to deposit as per the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) and considering the said decision, 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, on permitting him to withdraw the amount of Rs.1,39,500/-, the petitioner – original accused is hereby permitted to compound the offence for which he has been convicted. Consequently, both the impugned judgement and orders of conviction and sentence, more particularly, judgement and order of conviction and sentence passed by the learned Metropolitan Magistrate N.I. Act Court No.5, Ahmedabad in Criminal Case No.1859 of 2009 dtd.18/8/2010 as well as the judgement and order passed by the learned Additional Sessions Judge, Court No.15, City Civil and Sessions Court, Ahmedabad, in Criminal Appeal No.348 of 2010 dtd.31/8/2012, 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.
Registry is hereby directed to pay Rs.1,39,500/-, which the petitioner is reported to have deposited on 14/9/2012 and 27/9/2012 pursuant to the earlier order passed by this Court, to the respondent No.2 herein by Account Payee Cheuqe on proper verification and identification at the earliest but not later than 10 days from today.
Rule is made absolute accordingly. D.S. permitted.
[M.R. SHAH, J.] rafik