IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 51 of 2011 With CRIMINAL REVISION APPLICATION No. 52 of 2011 To CRIMINAL REVISION APPLICATION No. 53 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH =========================================
========================================= DINESHKUMAR KANJIBHAI PATEL Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ========================================= Appearance :
MR.DIPAK B PATEL for Applicant(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2, MR MAYUR A ThakoreE for Respondent(s) : 2, =========================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 06/11/2012 COMMON ORAL JUDGMENT
[1.0] RULE in each of the Revision Applications. Shri L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 – State of Gujarat and Shri Mayur Thakore, learned advocate waives service of notice of Rule on behalf of respondent No.2 – original complainant in each of the Revision Applications.
[1.1] As common question of law and facts arise and as such are between same parties, all these Revision Applications are heard, decided and disposed of together by this common judgment and order. As it is reported that parties have settled the dispute amicably and it is requested to permit the respective applicants – original accused to compound the offence for which they have been convicted and as respondent No.2 – original complainant has no objection, all these Revision Applications are taken up for final hearing today.
[2.0] Criminal Revision Application No.51 of 2011 has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 18.03.2010 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2059 of 2009 convicting the applicant herein – original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) for dishonor of the cheque of Rs.6 lakhs, as well as the impugned judgment and order dated 28.01.2011 passed by the learned Appellate Court – learned Principal City Sessions Judge, Ahmedabad in Criminal Appeal No.165 of 2010 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.
[2.1] Criminal Revision Application No.52 of 2011 has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 18.03.2010 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2062 of 2009 convicting the applicant herein – original accused for the offence punishable under Section 138 of the NI Act for dishonor of the cheque of Rs.1 lakh, as well as the impugned judgment and order dated 28.01.2011 passed by the learned Appellate Court – learned Principal City Sessions Judge, Ahmedabad in Criminal Appeal No.164 of 2010 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.
[2.2] Criminal Revision Application No.53 of 2011 has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 18.03.2010 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2060 of 2009 convicting the applicant herein – original accused for the offence punishable under Section 138 of the NI Act for dishonor of the cheque of Rs.3 lakhs, as well as the impugned judgment and order dated 28.01.2011 passed by the learned Appellate Court – learned Principal City Sessions Judge, Ahmedabad in Criminal Appeal No.160 of 2010 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 all these Revision Applications are taken up for hearing, Shri Dipak B. Patel, learned advocate appearing on behalf of the respective applicant – original accused as well as Shri Mayur Thakore, learned advocate appearing on behalf of respondent No.2 – original complainant have stated at the Bar that both, the accused as well as the original complainant have settled the dispute amicably and have entered into the consent terms under which the original accused has agreed to pay a total sum of Rs.5,85,000/ (against the total cheque amount of Rs.10 lakhs) and the original complainant has agreed to accept the same as full and final settlement of his claim against the cheques which are dishonored. It is further stated that against the aforesaid amount of Rs.5,85,000/ the applicant accused has already deposited a sum of Rs.1,20,000/ with the learned Sessions Court in respective Criminal Appeals (Rs.50,000/ in Criminal Appeal No.160 of 2010; Rs.20,000/ in Criminal Appeal No.164 of 2010 and Rs.50,000/ in Criminal Appeal No.165/2010) and a sum of Rs.2 lakhs is paid to the original complainant by demand draft. It is stated that under the consent terms the applicant – original accused has agreed to pay the balance amount of Rs.2,65,000/ to the original complainant within a period of six months from today. It is reported that the applicant herein – original accused has also filed a separate undertaking that the remaining amount of Rs.2,65,000/ shall be paid to the original complainant within a period of six months from today failing which the conviction stands.
[4.0] Shri Dipak B. Patel, learned advocate appearing on behalf of the applicant – original accused has stated at the Bar that the applicant herein – original accused has also deposited 15% of the total cheque amount i.e. Rs.1,50,000/ 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 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. Therefore, it is requested by the learned advocate appearing on behalf of the applicant herein – original accused to permit the applicant to compound the offence for which he has been convicted.
[5.0] Shri Mayur Thakore, learned advocate appearing on behalf of the respondent No.2 – original complainant has confirmed the consent terms and also the payment of Rs.2 lakhs made by demand draft. He has requested to permit the complainant to withdraw Rs.1,20,000/ which the applicant – original accused has deposited in Criminal Appeals and has also requested to make suitable observations that in case the applicant herein – original accused does not make the payment of balance amount of Rs.2,65,000/ towards remaining amount due and payable under the consent terms, in that case the conviction stands automatically inclusive of the proceedings for breach of undertaking. He has stated at the Bar that in view of the above and with above, 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.
[5.1] Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent State has requested to pass appropriate order in view of the above settlement between the parties.
[6.0] Heard learned advocates appearing on behalf of respective parties. It appears that parties have settled the dispute amicably and they have entered into the consent terms under which against the total cheque amount of Rs.10 lakhs (in all the three cases), the accused has agreed to pay a total sum of Rs.5,85,000/ as full and final settlement of the claim of the original complainant against the accused towards cheques which are dishonored. It is also reported that out of the said amount of Rs.5,85,000/, Rs.2 lakhs is already paid to the original complainant by four demand drafts of Rs.50,000/ each. It is also reported that the original accused has also deposited Rs.1,20,000/ with the Sessions Court in Criminal Appeal Nos.165/2010, 164/2010 and 160/2010 under the consent terms and as per the undertaking by the applicant herein – original accused in respective Revision Applications, the applicant herein has agreed to pay the remaining amount of Rs.2,65,000/ to the original complainant within six months from today. It is also reported that the applicant – original accused has also deposited 15% of the total cheque amount i.e. Rs.1,50,000/ 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. It is also reported that the original complainant has no objection if the applicant is permitted to compound the offence for which he has been convicted. Under the circumstances and in view of the aforesaid settlement and the decision of the Hon’ble Supreme Court in the case of Damodar S. Prabhu (Supra), respective applicant herein – original accused is permitted to compound the offence for which he has been convicted. Consequently, the impugned judgment and orders 18.03.2010 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case Nos.2059 of 2009, 2062 of 2009 and 2060 of 2009 as well as the judgment and orders dated 28.01.2011 passed by the learned Principal City Sessions Judge, Ahmedabad in Criminal Appeal Nos.165/2010, 164/2010 and 160/2010 are hereby quashed and set aside. The learned Sessions Court before whom the applicant herein – original accused has deposited the aforesaid amount of Rs.1,25,000/ in respective appeals is directed to pay the said amount to respondent No.2 – original complainant by account payee cheque at the earliest. It is observed and clarified that if the applicant herein – original accused does not pay the remaining amount of Rs.2,65,000/ within six months from today as per the undertaking, in that case, the impugned judgment and order passed by the learned Metropolitan Magistrate, confirmed by the learned Appellate Court stands automatically and the applicant herein – original accused to undergo the sentence.
With this, Rule is made absolute to the aforesaid extent in each of the Criminal Revision Applications.
(M.R. Shah, J.) Menon