1. Rule. Mr.L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.1 – State and Mr.N.D. Buch, learned advocate waives the service of notice of rule on behalf of the respondent No.2 – original complainant.
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 entire cheque amount has been deposited by the petitioner - original accused and even further amount as mentioned in the Undertaking/Affidavit has been deposited and is to be deposited, 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 petitioner – original accused to quash and set aside the judgement and order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Rajkot in Criminal Case No. 2804 of 2003 dtd.15/5/2006 convicting the petitioner - original accused for the offence under section 138 of Negotiable Instruments Act as well as the judgement and order dtd.31/8/2010 passed by the learned Additional Sessions Judge & Presiding Officer, FTC No.4, Rajkot in Criminal Appeal No.12 of 2006, 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 hearing, Mr.Rachh, learned advocate appearing for Mr.Pratik Jasani, learned advocate appearing on behalf of the petitioner herein – original accused and Mr.N.D. Buch, learned advocate appearing on behalf of the respondent No.2 – original complainant, have amicably settled the dispute amicably. It is stated that the petitioner herein has deposited a sum of Rs.1,50,000 with the registry of this Court as per the order dtd.9/9/2010 passed by this Court. It is further submitted that the petitioner has deposited a further sum of Rs.90,000 towards the interest computing from 2003 to 2010, with the registry of this Court and that the petitioner - original accused has no objection if the respondent – original complainant is permitted to withdraw the aforesaid amount. He has also stated at the bar that as per the settlement arrived at between the petitioner and the respondent No.2, the petitioner is required to pay a further sum of Rs.35,000 to the respondent No.2, out of which Rs.5000/- is already paid today and balance amount of Rs.30,000/- is to be paid in three equal installments of Rs.10,000/- commencing from 30/10/2012.
5. Mr.Premal Rachh, learned advocate appearing on behalf of the petitioner – original accused has placed on record Undertaking /Affidavit dtd.11/9/2012 undertaking to pay a further sum of Rs.30,000, which is directed to be taken on record.
6. It is submitted that oin payment of the aforesaid amount, there shall not be any claim of the respondent No.2 – original complainant against the petitioner herein – original accused with respect to cheque in question.
7. Mr.Premal Rachh, learned advocate appearing on behalf of the petitioner - original accused has also stated at the bar that the petitioner herein – original accused has already deposited 15% of the cheque amount i.e. Rs.22,500/- with the Gujarat State Legal Services Authority, which the petitioner - original accused is required to be deposited pursuant to 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 petitioner herein – original accused to compound the offence for which he has been convicted. Therefore, it is requested to permit the petitioner - original accused to compound the offence and set aside the impugned Judgement and Order of conviction and sentence passed by both the courts below.
8. Mr.N.D. Buch, learned advocate appearing on behalf of the respondent No.2 – original complainant, under the instructions of his client, has stated at the bar that that in view of the above and subject to further payment of RS.30,000/- as per the Undertaking dtd.11/9/2012, respondent No.2 – original complainant has no objection if the petitioner - original accused is permitted to compound the offence for which he has been convicted.
9. Heard learned advocates appearing on behalf of the respective parties. Considering the aforesaid, it appears that the dispute is amicably settled between the petitioner - original accused and the respondent No.2 - original complainant and as such the petitioner - accused has agreed to pay a total sum of Rs.2,75,000/- to the respondent No.2 – original complainant against the cheque amount of Rs.1,50,000/-. It appears that out of the aforesaid amount of Rs.2,75,000/-, Rs.2,40,000 is already deposited by the petitioner - original accused with the registry of this Court and further sum of Rs.5000/- is also paid on 6/9/2012 and a further sum of Rs.30,000/- is undertaken to be paid by the petitioner – original accused to the respondent No.2 - original complainant in three equal monthly installments of Rs.10,000/- commencing from 30/10/2012. It appears that even the petitioner has also deposited 15% of the cheque amount i.e. Rs.22,500/- with the Gujarat State Legal Services Authority. Considering the above and considering the the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra), the petitioner – original accused can be permitted to compound the offence for which he has been convicted. Under the circumstances, present Revision Application is allowed subject to payment of further sum of Rs.30,000/- as undertaken in the Undertaking/Affidavit by the petitioner, petitioner herein – original accused is permitted to compound the offence for which he has been convicted by the learned trial court confirmed by the learned appellate court. Under the circumstances, both the impugned judgement and orders, more particularly, the judgement and order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Rajkot in Criminal Case No. 2804 of 2003 dtd.15/5/2006 convicting the petitioner - 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, FTC No.4, Rajkot in Criminal Appeal No.12 of 2006 dtd.31/8/2010, are hereby quashed and set aside. Consequently, if the petitioner herein - original accused is in jail, he shall be released forthwith, if not required in any other case. Rule is made absolute accordingly.
Direct Service is permitted.
rafik [M.R. SHAH, J.]