Leave to amend the prayer clause by challenging the judgment and order passed by the learned Judicial Magistrate, First Class, Godhra in Criminal Case No.3821 of 2000. [1.0] RULE. Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 – State of Gujarat and Shri Y.J. Patel, learned advocate waives service of notice of Rule on behalf of respondent No.2 – original complainant. In the facts and circumstances of the case and as it is reported that the parties have settled the dispute amicably and the applicant herein – original accused has paid the entire cheque amount to respondent No.2 herein – original complainant and in view of the settlement the applicant prays and request to permit him to compound the offence for which he has been convicted, present Criminal Revision Application is taken up for final hearing today.
[2.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order dated 29.08.2007 of conviction and sentence passed by the learned JMFC, Godhra in Criminal Case No.3821 of 2000 convicting the applicant herein – original accused 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.5,46,000/ as well as the impugned judgment and order dated 30.08.2012 passed by the learned Appellate Court – learned Additional Sessions Judge, Godhra in Criminal Appeal No.21 of 2007 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein – original accused confirming the judgment and order of sentence passed by the learned trial Court.
[3.0] Today, when the present Revision Applications are taken up for final hearing, Shri Manoj T. Danak, learned advocate appearing on behalf of the applicant herein – original accused has stated at the Bar that the applicant has already deposited the entire cheque amount i.e.
Rs.5,46,000/ with the original complainant – Panchmahal District Cooperative Bank on 08.10.2012. He has also stated at the Bar that the applicant – original accused as well as respondent No.2 have also settled the entire dispute amicably and against the total dues of the applicant under One Time Settlement Scheme the applicant is required to pay a total sum of Rs.53,70,000/ (including the cheque amount) and the applicant herein – original accused has agreed to pay the aforesaid amount of Rs.53,70,000/ under the OTS out of which Rs.9,06,000/ (inclusive of the cheque amount) is already paid. He has also stated at the Bar that the balance amount of Rs.44,64,000/ with interest thereon i.e. in all Rs.49,10,400/ is agreed to be paid by the applicant herein – original accused by 12 monthly equal installments, the first installment shall commence from 01.12.2012. He has also stated at the Bar that a separate undertaking has been filed by the applicant herein – original accused to pay the entire amount due and payable under the OTS i.e. Rs.53,70,000/ in 12 equal monthly installments commencing from 01.12.2012. He has also stated at the Bar under the instructions from the applicant that there shall not be any breach of undertaking. He has also stated at the Bar under the instructions from the applicant herein – original accused who is personally present in the Court that in case there is any default in payment of any of the installments, the conviction stands. Shri Danak, learned advocate appearing on behalf of the applicant has also stated at the Bar that the applicant has already deposited 15% of the cheque amount with the Gujarat State Legal Services Authority i.e. Rs.81,900/ which the applicant herein – original accused is required to deposit in view of the decision of the Hon’ble Supreme in the case of Damodar S. Prabhu vs. Sayed Babalal H. reported in (2010)5 SCC 663, while requesting to permit the applicant to compound the offence for which he has been convicted. He has stated at the Bar that in view of the above and the undertaking filed by the applicant – accused to pay the entire amount of OTS i.e. Rs.53,70,000/ by 12 monthly equal installments commencing from 01.12.2012, the original complainant has no objection if the applicant is permitted to compound the offence for which he has been convicted.
[4.0] Shri Y.J. Patel, learned advocate appearing on behalf of the respondent No.2 – original complainant Bank has confirmed that under the OTS, the applicant is required to pay a total sum of Rs.53,70,000/ against which a total sum of Rs.9,06,000/ is already paid by now (inclusive of the cheque amount). He has also stated at the Bar under the instructions from his client that in view of the above undertaking filed by the applicant and subject to observing that in case there is any default in any of the installments, in that case, the conviction stands and even the applicant shall be liable to face consequences/prosecution for breach of the undertaking, the respondent No.2 – original complainant has no objection if the applicant herein – original accused is permitted to compound the offence for which he has been convicted.
[4.1] Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of the respondent State has requested to pass appropriate order considering the aforesaid facts and circumstances of the case.
[5.0] Heard Shri Danak, learned advocate appearing on behalf of the applicant herein – original accused, Shri Y.J. Patel, learned advocate appearing on behalf of the respondent No.2 – original complainant and Ms. C.M. Shah, learned APP appearing on behalf of the respondent No.1 State of Gujarat.
[5.1] At the outset it is required to be noted that as such the applicant herein – original accused has been convicted for the offence under Section 138 of the NI Act for dishonor of cheque of Rs.5,46,000/. However, the total amount due and payable by the applicant was Rs.1,12,00,000/. However, under the OTS Scheme, the applicant is required to pay a total sum of Rs.53,70,000/ (inclusive of the cheque amount), which the applicant has now agreed to pay to respondent No.2 Bank in 12 equal installments commencing from 01.12.2012. That the applicant herein – original accused has also filed a separate undertaking to pay the balance amount of Rs.49,10,400/ in 12 equal monthly installments commencing from 01.12.2012, which is directed to be taken on record. It is also reported that the applicant has also deposited 15% of the cheque amount i.e. Rs.81,900/ with the Gujarat State Legal Services Authority which the applicant herein – original 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 the applicant to compound the offence for which he has been convicted. As reported herein above, respondent No.2 – original complainant has no objection if the applicant is permitted to compound the offence for which he has been convicted subject to his complying with the undertaking dated 08.11.2012 and to pay the entire amount under the OTS Scheme within 12 months by 12 equal monthly installments commencing from 01.12.2012.
[6.0] Under the circumstances and in view of the aforesaid settlement between the parties and in view of the decision of the Hon’ble Supreme Court in the case of Damodar S. Prabhu (Supra), the applicant herein – original accused is permitted to compound the offence for which he has been convicted. Consequently, the impugned judgment and order dated 29.08.2007 of conviction and sentence passed by the learned JMFC, Godhra in Criminal Case No.3821 of 2000 convicting the applicant herein – original accused for the offence under Section 138 of the NI Act as well as the impugned judgment and order dated 30.08.2012 passed by the learned Appellate Court – learned Additional Sessions Judge, Godhra in Criminal Appeal No.21 of 2007 are hereby quashed and set aside. However, it is observed that the present order permitting the applicant to compound the offence for which he has been convicted is subject to the applicant herein – original accused complying with the undertaking dated 08.11.2012 and in case there is any default in payment of any of the installments which the applicant has agreed as per the undertaking dated 08.11.2012, in that case the conviction stands and the applicant has to undergo the sentence as ordered by the learned JMFC, Godhra confirmed by the learned Appellate Court. Rule is made absolute accordingly to the aforesaid extent.
(M.R. Shah, J.) Menon