IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 112 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= VARSHABEN MADHUKANT VYAS & 1 - Applicant(s) Versus KRISHNA TRADERS - THRO' MAHESH JAGJIVAN PUPARELIYA (PROP.) & 1 - Respondent(s) ========================================================= Appearance :
MR ASHISH M DAGLI for Applicant(s) : 1 - 2. MR PP MAJMUDAR for Respondent(s) : 1, MR LB DABHI ADDL.PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/09/2012
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 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, and as it is reported that parties have settled the dispute amicably and the petitioners herein have already deposited the entire cheque amount of Rs.48,500/- with the Registry of this Court and considering the request of the parties more particularly petitioners herein – original accused to permit them to compound the offence for which they have been convicted, 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 petitioners – original accused to quash and set aside the judgement and order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Junagadh in Criminal Case No. 963 of 2006 dtd.3/1/2009, by which the learned Magistrate has convicted the petitioners - original accused for the offence under section 138 of Negotiable Instruments Act as well as the judgement and order passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.2, Junagadh in Criminal Appeal No.3 of 2009 dtd.21/2/2011, by which the learned appellate court has dismissed the said appeal confirming the Judgement and Order of conviction and sentence passed by the learned trial court.
4. Today when the present Criminal Revision Application is taken up for final hearing, it is reported by the learned advocates appearing on behalf of the respective parties that the petitioners have already deposited the entire cheque amount of Rs.48,500/- with the registry of this Court and the parties have settled the dispute amicably and the respondent No.1 – original complainant be permitted to withdraw the cheque amount deposited by the petitioners with the registry of this Court.
5. Mr.Dagli, learned advocate appearing on behalf of the petitioners – original accused has stated at the bar that the petitioners have also deposited a sum of Rs.7,275/- towards costs being 15% of the cheque amount, with the Gujarat State Legal Services Authority which the petitioners - original accused are required to deposit as per 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 so as to enable the petitioners herein – original accused to compound the offence for which they have been convicted. Therefore, it is requested to permit the petitioners - original accused to compound the offence and consequently quash and set aside the impugned Judgement and Orders passed by both the courts below convicting the petitioners herein for the offence under section 138 of the Negotiable Instruments Act.
6. Mr.P.P. Majmudar, learned advocate appearing on behalf of the respondent No.1 – original complainant has stated at the bar that on permitting the respondent No.1 – original complainant to withdraw the entire cheque amount of Rs.48,500/- which the petitioners - accused have deposited with the registry of this Court, respondent No.1 – original complainant has no objection if the petitioners - original accused are permitted to compound the offence for which they are convicted.
7. Having heard learned advocates appearing on behalf of the respective parties and considering the subsequent development and settlement between the petitioners - original accused and the respondent No.1 – original complainant and considering the fact that the entire cheque amount due and payable by the petitioners to the respondent No.1 under the cheque in question has been deposited by the petitioners with the Registry of this Court to be paid to the respondent No.1 – original complainant and considering the fact that the petitioners – original accused have 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 said decision, the petitioners – original accused are hereby permitted to compound the offence for which they have been convicted. Consequently, both the impugned judgement and orders of conviction and sentence, more particularly, judgement and order passed by the learned Judicial Magistrate (First Class), Junagadh in Criminal Case No. 963 of 2006 dtd.3/1/2009 as well as the judgement and order passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.2, Junagadh in Criminal Appeal No.3 of 2009 dtd.21/2/2011, are hereby quashed and set aside. Consequently, if the petitioners herein - original accused are in jail, they shall be released forthwith, if not required in any other case. Rule is made absolute accordingly.
Registry is hereby directed to pay Rs.48,500/- deposited by the petitioners herein with the Registry of this Court in the present proceedings to the respondent No.1 herein by Account Payee Cheuqe on proper verification and identification at the earliest.
[M.R. SHAH, J.] rafik