1.00. Criminal Revision Application No.451 of 2012 has been preferred by the petitioner - original accused to quash and set aside the impugned Judgement and Order of conviction and sentence passed by the learned Metropolitan Magistrate, Court No.8, Ahmedabad in Criminal Case No. 895 of 2008 dtd.11/8/2011 convicting the petitioner - original accused for the offence under section 138 of the Negotiable Instruments Act as well as the impugned Judgement and Order passed by the learned appellate court - learned Additional City Sessions Judge, Ahmedabad in Criminal Appeal No.324 of 2011 by which the learned appellate court has dismissed the said appeal preferred by the accused confirming the Judgement and Order of conviction and sentence passed by the learned Metropolitan Magistrate, Ahmedabad. As during the pendency of the present Criminal Revision Application and before any order could be passed by this Court in the main Revision Application permitting the parties to compound the offence, more particularly permitting the accused to compound the offence for which he has been convicted, the original accused expired on 11/10/2012 and therefore, the original complainant has preferred Criminal Misc.Application No. 15513 of 2013 to issue necessary directions even by taking suo-motu notice / cognizance of the facts and circumstances inter-alia to bring the heirs and legal representative of the deceased accused on record and to direct and order the other-side including the advocate of the original accused to disclose the details of the heirs and properties of the deceased / petitioner and information of the properties of the deceased petitioner - original accused and get the matter settled by implementing the orders already passed and including compounding of the case and direct and order payment of all monies to the original complaint – respondent No.2 herein by implementation of the orders already passed to deposit the amounts by proceeding against the estate of the deceased petitioner - original accused and pass such other and further orders deemed fit and proper on the facts and in the circumstances of the case in order to do complete justice. 2.00. At the outset, it is required to be noted that Being aggrieved by and dissatisfied with the impugned Judgement and Order of conviction and sentence passed by the learned Metropolitan Magistrate, Ahmedabad convicting the original accused for the offence under section 138 of the Negotiable Instruments Act as well as the impugned Judgement and Order passed by the learned appellate court in dismissing the appeal preferred by the original accused and convicting the original accused for the offence under section 138 of the Negotiable Instruments Act, petitioner - original accused has preferred Criminal Revision Application No. 451 of 2012. That the main Criminal Revision Application No. 451 of 2012 came to be heard by this Court on 7/9/2012 and at that time the learned advocate appearing on behalf of the petitioner - original accused, under the instructions of the wife of the petitioner - original accused, stated at the bar that the original accused is ready and willing to deposit the entire amount under the cheque in question and pray for compounding the offence subject to agreeing by the respondent No.2 – original complainant and on depositing 15% of the cheque amount as required to be deposited with the Gujarat State Legal Services Authority 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. He also stated at the bar that the petitioner - original accused shall deposit with the registry
of this Court an amount of Rs.2 Lacs and balance amount shall be deposited within a period of two weeks from the date of release of the original accused. He also stated at the bar that the petitioner - original accused is ready and willing to deposit cost of original complainant for appearing in the present matter.
2.01. Under the aforesaid circumstances, this Court directed the registry to issue notice upon the complainant for the aforesaid purpose, making it returnable on 24/9/2012 and passed further order that on deposit of Rs.2 Lacs with the registry of this Court and showing receipt before the jail authority,the original accused shall be released on temporary bail upto 28/9/2012 on his furnishing Personal Bond of Rs.10,000/- with the jail authority with a surety of the like. This Court also directed the original accused to deposit further sum of Rs.10,000/- with the registry of this Court towards the cost of the – original complainant, to be paid to the original complainant irrespective of the outcome of the present litigation. This Court passed the following order on 7/9/2012 :-
“1.0. Shri Sanjay Suthar, learned advocate appearing on behalf of the applicant has stated at the bar under the instruction of his wife who is personally present in the Court that the applicant is ready and willing to deposit and pay the entire cheque amount and has prayed for compound the offence subject to agreeing the respondent no.2 and on depositing of 50% of the cheque amount as required to be deposited with the Gujarat State Legal Services Authority 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. He has stated at the bar that at present the applicant shall deposit with the Registry of this Court a sum of Rs.2 lacs and the balance amount shall be deposited within a period of two weeks form the date of his release. He has also stated at the bar that the applicant is ready and willing to deposit the cost of original complainant for appearing in the present matter. Hence, notice only for the aforesaid purpose making it returnable on 24th September 2012. On deposit of Rs.2 lacs with the Registry of this Court and on showing receipt before the Jail Authority, the applicant shall be released on temporary bail upto to 28th September 2012 on his furnishing personal bond of Rs.10,000/- with the jail authority with a surety of like amount. If the applicant does not deposit the entire cheque amount on or before 21.9.2012 appropriate order shall be passed. Applicant to deposit further sum of Rs.10,000/- with the Registry of this Court towards cost of the respondent no.2 -original complainant which shall be paid to the respondent no.2 irrespective of outcome of the present application (as agreed ) and on deposit the aforesaid amount of Rs.10,000/- on or before 11th September 2012, Registry is directed to issue notice upon the respondent no.2. Ms. Shah, learned APP waives service of notice of Rule on behalf of the respondent no. 1 State. Direct service is permitted.”
2.02. It appears that the petitioner - original accused complied with the order dtd.7/9/2012 and the original accused was released on bail. He has deposited Rs.2 Lacs with the registry of this Court along with Rs.10,000 (towards the cost of the respondent No.2 - original complainant) and Mr.Uday Bhatt, learned advocate has appeared on behalf of the respondent No.2 – original complainant.
2.03. It is to be noted that initially the learned advocate appearing on behalf of the respondent No.2 – original complainant, under the instructions of his client, did not agree for permitting the petitioner - original accused to compound the offence for which he has been convicted. However, when the Criminal Revision Application was heard on 1/10/2012, Mr.Bhatt, learned advocate appearing on behalf of the original complainant stated at the bar, under the instructions from the respondent No.2 – original complainant, that over and above the cheque amount, if the complainant is paid reasonable interest on the amount due and payable, he has no objection if the petitioner - original accused is permitted to compound the offence. To that, Mr.Suthar, learned advocate appearing on behalf of the petitioner – original accused took instructions and stated at the bar that the petitioner - original accused is ready and willing to deposit a further sum of Rs.1,25,000/- towards interest and he has also agreed and ready and willing to deposit 15% of the cheque amount with the Gujarat State Legal Services Authority, so as to enable the petitioner - original accused to compound the offence for which he has been convicted.
2.04. Under the circumstances stated hereinabove, the matter was adjourned to 10/10/2012 so as to enable the petitioner - original accused to deposit a further sum of Rs.1,25,000/- with the Registry of this Court as well as to deposit 15% of the cheque amount by Demand Draft with the Gujarat State Legal Services Authority.
2.05. That thereafter, the matter was adjourned to 12/10/2012 and when again the present Criminal Revision Application was taken up for further hearing and before any final order could be passed permitting the accused to compound the offence for which he has been convicted, unfortunately, the petitioner - original accused has expired on 11/10/2012 and therefore, present Criminal Revision Application was adjourned to 22/10/2012.
3.00. In view of the above, Mr.Suthar, learned advocate appearing on behalf of the petitioner – original accused has requested to dismiss the main Criminal Revision Application as having been abated as the original accused has expired and hence no further order is required to be passed.
3.01. The aforesaid prayer is opposed by Mr.Uday Bhatt, learned advocate appearing on behalf of the original complainant – respondent No.2 herein by submitting that despite the death of the original accused, heirs of the original accused may be directed to be brought on record and they may be directed to proceed further with the Revision Application and/or compound the offence and amount deposited by the accused during his lifetime, along with the interest thereon, may be directed to be paid to the original complainant and therefore, the original complainant has preferred Criminal Misc. Application No. 15513 of 2012.
3.02. Mr.Bhatt, learned advocate appearing on behalf of the original complaint – respondent No.2 has submitted that as such as observed by the Hon'ble Supreme Court in the case of Damodar S.Prabhu (supra), the proceedings under section 138 of the Negotiable Instruments Act are compensatory in nature and civil in nature and therefore, the original complainant – respondent No.2 is entitled to money which is already deposited by the original accused during his lifetime and even interest accrued thereon, which was agreed to be deposited by the original accused, which may be directed to be deposited by the heirs of the original accused. It is submitted that the orders passed by this Court earlier are required to be complied with as they are capable of being execution of decree also. Therefore, it is requested to allow Criminal Misc.Application No.15513 of 2012 and it is requested to allow the original complainant to withdraw the amount of Rs.2 Lacs deposited by the original accused, during his lifetime deposited pursuant to the earlier orders passed by this Court and to do complete justice.
3.03. Mr.Bhatt, learned advocate appearing on behalf of the respondent No.2 – original complainant has also relied upon the decision of the Hon'ble Supreme Court in the case of Lallan Rai and others Versus State of Bihar, reported in 2003 (1) S.C.C. 268, and has submitted that as observed and held by the the Hon'ble Supreme Court, procedure is the handmade justice and therefore, to do complete justice, original complainant may be permitted to withdraw the amount deposited by the original accused.
3.04. Mr.Bhatt, learned advocate appearing on behalf of the respondent No.2 – original complainant has also relied upon the decision of the Hon'ble Supreme Court in the case of Pranab Kumar Mitra Versus State of West Bengal and another, reported in AIR 1959 S.C. 145 in support of his submission that as held by the Hon'ble Supreme Court in the said decision, revision would not abate on the death of the original accused and still even in exercise of the suo-motu revision, Court may proceed further with the Revision Application on merits and consider the sentence imposed by the courts below so far as fine is concerned.
3.05. Relying upon the above decisions and making above decisions, it is requested to allow Criminal Misc.Application No. 15513 of 2012 and permit the original complainant to withdraw amount of Rs.2 Lacs already deposited by the original accused during his lifetime pursuant to the earlier orders passed by this Court and the balance amount (interest accrued on the principal amount) may be directed to be deposited / paid by the heirs of the original accused and/or to be recovered from the properties of the original accused.
4.00. Criminal Misc.Application No. 15513 of 2012 is opposed by Mr.Suthar, learned advocate appearing on behalf of the original accused (now deceased). It is submitted that as such as the heirs are not on record, he cannot make any further submission on their behalf, however, has submitted that in view of the death of original accused and the entire fine imposed by the learned trial court confirmed by the learned appellate court has been paid, main Criminal Revision Application is required to be dismissed as having been abated and no further order can be passed permitting the original accused (now deceased) to compound the offence for which he has been convicted.
5.00. Heard the learned advocate appearing on behalf of the respective parties at length.
5.01. At the outset, it is required to be noted that initially the original complainant requested to permit him to compound the offence on deposit of Rs.2 Lacs with Rs.10,000 towards costs of the present litigation and on deposit of 15% of the cheque amount with the Gujarat State Legal Services Authority and in fact, the original accused also deposited Rs.2 Lacs with the registry of this Court and also deposited Rs.10,000 towards the cost of the present litigation to be paid to the original complainant. That thereafter on the insistence by the original complainant to pay some reasonable interest on the principal amount under the cheque in question, original accused also agreed to pay Rs.1,25,000 towards interest on the principal amount and also agreed to deposit 15% of the cheque amount with the Gujarat State Legal Services Authority. However, unfortunately before further amount of Rs.1,25,000 towards interest on the principal amount and even 15% of the cheque amount with the Gujarat State Legal Services Authority could be deposited and the main Criminal Revision Application is finally disposed of by permitting the original accused to compound the offence for which he has been convicted, unfortunately original accused has died on 11/10/2012. At this stage it is required to be noted that the entire fine is already deposited/paid by the original accused during his lifetime and therefore, short question which arises for consideration of this Court is, what further order can be passed in the present Criminal Revision Application, more particularly when the original accused had died. It is true that the original accused had deposited Rs.2 Lacs during his lifetime while requesting to permit him to compound the offence for which he has been convicted, however, before any final order could be passed permitting the original accused to compound the offence and main Criminal Revision Application is disposed of, original accused has died. Under the circumstances, as such except dismissing the present Criminal Revision Application as having been abated on the death of the original accused, no further order can be passed and is required to be passed.
5.02. The request on behalf of the original complainant to permit the original complainant to withdraw the amount already deposited by the original accused and to recover the balance amount (interest on the principal amount) from the estate of the deceased and/or heirs and legal representatives of the original accused, cannot be accepted. Even amount of Rs.2 Lacs deposited by the original accused was required to be paid paid to the original complainant while terminating the entire proceedings / Revision Application and while permitting the original accused to compound the offence for which he has been convicted. However, unfortunately before any final order could be passed, original accused has expired/died and hence no order can be passed even in exercise of suo-motu powers to join heirs of the original accused on record and to direct them to disclose the estate of the original accused and to recover the amount from the estate of the original accused, as prayed for in the Criminal Misc.Application No. 15513 of 2012. Such a prayer which is made in the aforesaid Criminal Misc.Application No. 15513 of 2012 is unknown to the Code of Criminal Procedure and even proceedings under Negotiable Instruments Act.
5.03. Nothing can be done even under the guise to do substantial justice which is not provided under the law, more particularly under the Code of Criminal Procedure or Negotiable Instruments Act. If at all the original complainant is entitled to the amount under the cheque in question and/or any amount due and payable by the heirs of the original accused, the respondent No.2 herein - original complainant can recover the same by way of instituting Civil Suit against the heirs of the original accused, and the same can be considered in accordance with law and on merits and same can be recovered from the estate of the accused on leading evidence and if permissible under the law. However, such an order in Criminal Revision Application against the Judgement and Order of conviction and sentence passed by the learned trial court, confirmed by the learned appellate court convicting the original accused for the aforesaid offences under section 138 of the Negotiable Instruments Act and that too when the original accused has expired, can not be passed.
5.04. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Pranab Kumar Mitra (supra), on facts, the said decision would not be applicable. In the said case, the Hon'ble Supreme Court considered the issue of fine and observed and held that the Revision Application qua fine would well survive and therefore, the judgement and order of conviction can be considered by the revisional court so far as the aspect of fine is concerned. In the present case, admittedly, the original accused has deposited the amount of fine during his life time and heirs of the original accused is not on record. Under the circumstances, no order can be passed in the Criminal Misc.Application No. 15513 of 2012, preferred by the original complainant and the request made by the learned advocate appearing on behalf of the original complainant to pay the amount deposited by the original accused during his lifetime also cannot be granted. However, amount of Rs.10,000 deposited by the original accused towards the costs of the respondent No.2 herein -
original complainant, to be paid to the original complainant, deposited pursuant to the earlier orders passed by this Court for appearing in the present proceedings, can be directed to be paid to the original complainant.
6.00. In view of the above and for the reasons stated above, Criminal Revision Application No.451 of 2012 is dismissed as having been abated and present proceedings are dismissed as having been abated on the death of the original petitioner / original accused. Criminal Misc.Application No. 15513 of 2012 preferred by the original complainant for the reliefs stated hereinabove is dismissed. However, out of the amount of Rs.2,10,000/- deposited by the original accused during his lifetime, more particularly Rs.2 Lacs towards cheque amount as well as Rs.10,000/- towards costs of the original complainant, registry is directed to pay Rs.10,000/- to the original respondent No.2 – original complainant at the earliest.
Sd/-
[M.R. SHAH, J.] rafik