1. Rule. Ms.Sudha Gangwar, learned advocate waives service of notice of rule on behalf of respondent No.1 – original complainant and Ms.Chetna Shah, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.2 – State.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, 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 4/11/2009 passed by learned Metropolitan Magistrate, N.I.Act Court No.2, Ahmedabad in Criminal Case No. 1152 of 2008 (Old Case No.1805 of 2007) by which the petitioner - original accused has been convicted for the offence under section 138 of Negotiable Instruments Act well as the judgement and order dtd 30/3/2011 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.1, City Civil Court, Ahmedabad in Criminal Appeal No.308 of 2008, by which the learned appellate court has dismissed the said appeal preferred by the petitioner - original accused confirming the Judgement and Order of conviction passed by the learned trial court.
4. Today when the present Criminal Revision Application is taken up for final hearing, learned Advocates appearing on behalf of the respective parties more particularly learned advocate appearing on behalf of the complainant- respondent No.1 as well as original accused – petitioner herein have jointly submitted that in the facts and circumstances of the case and as the entire amount has been paid to the original complainant and the matter is settled between the parties and learned advocate appearing on behalf of the respondent No.1 – original complainant has stated at the bar that he has no objection if the offence is permitted to be compounded and the impugned judgement and orders passed by both the Courts below are quashed and set aside on any condition that may be imposed by this Court.
5. The learned advocates appearing on behalf of the respective parties have heavily relied upon 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 and have requested to permit the respective parties to compound the offence and quash and set aside the impugned judgement and orders passed by both the Courts below.
6. Mr.Raval, learned advocate appearing on behalf of the petitioner – original accused has stated at the bar that in fact the petitioner - original accused has paid Rs.80,000/- to the original complainant (against the cheque amount of Rs.60,000) towards the full and final settlement and amount due and payable under the cheque in question for settlement.
7. Ms.Sudha Gangwar, learned advocate appearing on behalf of the respondent No.1 – original complainant has confirmed that the respondent No.1 – original complainant has received Rs.80,000 from the petitioner herein – original accused. Copy of the receipt issued by the respondent No.1 is directed to be taken on record.
8. Mr.Raval, learned advocate appearing on behalf of the petitioner – original accused has stated at the bar that the petitioner - original accused has already deposited Rs.9000/- being 15% of the cheque amount in question with the Gujarat State Legal Services Authority, towards costs, which is to be paid, as observed by the Hon'ble Supreme Court in the case of Damodar S. Prabhu. (Supra).
9. Ms.Sudha Gangwar, learned advocate appearing on behalf of the respondent No.1 has also stated at the bar that the respondent No.1 – original complainant has no objection if the petitioner - original accused is permitted to compound the offence for which he has been convicted.
10. The learned advocates appearing on behalf of the respective parties have jointly submitted that the learned trial court may be directed to pay Rs.10,000 to the petitioner herein – original accused and Rs.10,000 to the respondent No.1 – original complainant, out of the amount of Rs.20,000 deposited with the learned trial court pursuant to the order passed by this Court dtd.19/4/2011.
11. In view of the above, the learned advocates appearing on behalf of the respective parties have requested to permit the petitioner - original accused to compound the offence for which he has been convicted and and quash and set aside the impugned Judgement and Orders passed by both the courts below.
12. Having heard learned advocates appearing on behalf of the respective parties and considering the subsequent development and settlement between the original complainant – respondent No.1 and original accused – petitioner and considering the fact that the entire amount due and payable by the petitioner to the respondent no.1 under the cheque in question (even more than that), has been paid by the petitioner – original accused to the respondent No.1 – original complainant and as the petitioner – original accused has deposited 15% of the cheque amount towards costs with the Gujarat State Legal Services Authority, as per the decision of 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.1 – original complainant, are 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 dtd. 4/11/2009 passed by learned Metropolitan Magistrate, N.I.Act Court No.2, Ahmedabad in Criminal Case No. 1152 of 2008 (Old Case No.1805 of 2007) by which the petitioner - original accused has been convicted for the offence under section 138 of Negotiable Instruments Act well as the judgement and order dtd 30/3/2011 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.1, City Civil Court, Ahmedabad in Criminal Appeal No.308 of 2008, 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.
As agreed between the learned advocates appearing on behalf of the respective, the learned trial court is directed to pay Rs.10,000 to the petitioner herein – original accused and Rs.10,000 to the respondent No.1 – original complainant, out of the amount of Rs.20,000 deposited with the learned trial court pursuant to the order passed by this Court dtd.19/4/2011, on proper verification and identification, by Account Payee Cheque.
Direct Service is permitted.
[M.R. SHAH, J.] rafik