1. RULE. Mr.P.P. Majmudar, learned advocate waives the service of notice of rule on behalf of the respondent No.1 – original complainant and Mr.L.B. Dabhi, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the 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, and as it is reported that the parties have settled the dispute amicably and the parties have requested to permit them to compound the offence, present Revision Application is taken up for final hearing today.
3. Present Revision Application, under section 397 read with section 401 of the Code of Criminal procedure, has been preferred by the petitioners – original accused to quash and set aside the impugned judgement and order of conviction and sentence passed by the learned trial court - learned Judicial Magistrate (First Class), Junagadh in Criminal Case No.3038 of 2006 dtd.3/1/2009, convicting the petitioners - original accused for the offence under section 138 of the Negotiable Instruments Act for the dishonour of the cheque bearing No.374865 dtd.13/6/2006 for an amount of Rs.2 Lacs as well as the impugned judgement and order passed by the learned appellate court - learned Additional Sessions Judge and Presiding Officer, FTC No.2, Junagadh in Criminal Appeal No.4 of 2009 dtd.21/2/2011, by which the learned appellate court had dismissed the said appeal confirming the judgement and order passed by the learned trial court.
4. Today when the present Revision Application is taken up for final hearing, Mr.Dagli learned advocate appearing on behalf of the petitioners – original accused has stated at the bar that the parties have settled the dispute amicably and out of the cheque amount of Rs.2 Lacs, the petitioners - original accused have deposited / paid an amount of 65,000/- with the registry of this Court and it is agreed between the parties that the petitioners – original accused shall pay an amount of Rs.1,35,000/- to the respondent No.1 – original complainant within a period of two months from today. It is submitted that one of the co-accused has already submitted the undertaking to the aforesaid extent, before this Honourable Court in the present proceedings. It is further submitted that the original accused have also deposited a further sum of Rs.30,000/- being 15% amount with the Gujarat State Legal Services Authority, in view of the decisions of the Hon’ble Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H., reported in (2010) 5 SCC 663, so as to enable the petitioners – original accused to compound.
5.00. Mr.Dagli, learned advocate appearing on behalf of the petitioners - original accused has also stated at the bar that representative of the petitioners – original accused is personally present in the court and he has assured the Court that the aforesaid amount of Rs.1,35,000/- shall be deposited with the registry of this Court within a period of two months from today, failing which the conviction stands. Mr.Dagli, learned advocate appearing on behalf of the petitioners has also stated at the bar that he has made the petitioners understand the implication of failure of not depositing the amount of Rs.1,35,000/- as agreed and undertaken by them, that in case the aforesaid amount of Rs.1,35,000/- is not deposited with the registry of this Court within a period of two months from today, as agreed and undertaken by them, not only the conviction stands but the petitioners will have to face the consequences for breach of undertaking and for which they can be prosecuted separately also.
Submitting accordingly it is requested to permit the petitioners to compound the offence for which they have been convicted.
6.00. Mr.P.P. Majmudar, learned advocate appearing on behalf of the respondent No.1 - original complainant has stated at the bar that in view of the above, respondent No.1 – original complainant has no objection if the petitioners are permitted to compound the offence for which they have been convicted, however, has requested to observe in the order that in case the petitioners fail to deposit aforesaid amount of Rs.1,35,000/- with the registry of this Court within a period of two months from today, as agreed and undertaken by the petitioners - original accused, the conviction and sentence stands.
7. Mr.L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
8. Heard the learned advocates appearing on behalf of the respective parties.
9. It appears that the parties have settled the dispute amicably and out of the cheque amount of Rs.2 Lacs, the petitioners - original accused have already deposited an amount of Rs.65,000/- with the registry of this Court and the petitioners – original accused have undertaken to deposit balance amount of Rs.1,35,000/- with the registry of this Court within a period of two months from today and a separate undertaking to that effect is also filed by one of the co- accrued. It appears that the original accused have also deposited an amount of Rs.30,000/- being 15% amount of the cheque in question 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). Under the circumstances, the petitioners are permitted to compound the offence for which they have been convicted, however, subject to rider that in case the petitioners fail to deposit aforesaid amount of Rs.1,35,000/- with the registry of this Court within a period of two months from today, as agreed and undertaken by the petitioners, the conviction stands.
10. In view of the above, and considering the undertaking and stand taken by the respective parties, present Revision Application is allowed and impugned order passed by the learned Judicial Magistrate (First Class), Junagadh in Criminal Case No.3038 of 2006 dtd.3/1/2009 as well as the impugned judgement and order passed by the learned Additional Sessions Judge and Presiding Officer, FTC No.2, Junagadh in Criminal Appeal No.4 of 2009 dtd.21/2/2011, are hereby quashed and set aside. If the petitioners – original accused are in jail they shall be released forthwith, if not required in any other case. However, it is observed and held that in case the petitioners fail to deposit aforesaid amount of Rs.1,35,000/- with the registry of this Court within a period of two months from today, as agreed and undertaken by the petitioners, the conviction and sentence awarded by the learned trial court, confirmed by the learned appellate court, impugned in the present Criminal Revision Application, stands and the petitioners herein – original accused shall have to undergo the imprisonment awarded by the learned trail court, confirmed by the learned appellate court.
In case of deposit of an amount of Rs.1,35,000/- by the petitioners with the registry of this Court within a period of two months from today, Registry is directed to pay the same to the respondent No.1 herein – original complainant by Account Payee Cheuqe on proper verification and identification at the earliest. It is ordered that the aforesaid amount of Rs.1,35,000/- shall be deposited by the petitioners herein, as agreed and undertaken, with the registry of this Court, as aforesaid, with a prior intimation to the respondent No.1 herein - original complainant or their advocate so that the original complainant can withdraw the same.
Registry is further directed to pay Rs.65,000/- deposited by the petitioners to the respondent No.1 – original complainant by Account Payee Cheque on proper verification and identification at the earliest.
Rule is made absolute to the aforesaid extent.
[M.R. SHAH, J.] rafik