NEUTRAL CITATION
R/CR.RA/1322/2022 ORDER DATED: 11/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1322 of 2022
With
CRIMINAL MISC.APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2023
In R/CRIMINAL REVISION APPLICATION NO. 1322 of 2022
With
R/CRIMINAL REVISION APPLICATION NO. 1324 of 2022
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BHUPATBHAI ASHABHAI JADEJA
Versus
MUSTUFAMIYA MOHAMMADMIYA MALEK
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Appearance:
S B SUTARIA(7651) for the Applicant(s) No. 1
MR AMIT P SOLIYA(10780) for the Respondent(s) No. 1
MR.JAY S SHAH(7244) for the Respondent(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/08/2023
COMMON ORAL ORDER
1. Challenge is given to the concurrent findings of conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881.
2. Criminal Revision Application no.1322/22 is filed against the judgment and order dated 3.10.2022 passed by the learned 3rd Additional District and Sessions Judge, Ahmedabad Rural in Criminal Appeal no.70 of Page 1 of 5 Downloaded on : Sun Sep 17 01:14:37 IST 2023 NEUTRAL CITATION R/CR.RA/1322/2022 ORDER DATED: 11/08/2023 undefined 2021 where the sentence was partially enhanced by the learned Appellate Court. While Criminal Revision Application no.1324/22 is filed against Criminal Appeal no.71/21 filed by the accused challenging the judgment and order of conviction and sentence passed under Section 138 of the Negotiable Instruments Act, 1881 by the learned Additional Chief Judicial Magistrate, Ahmedabad Rural and both the Appellate Court's order have been challenged by the accused.
3. Learned advocate for the applicant submitted that during the pendency of the proceedings, parties have settled the disputes amicably outside the Court, and that there remains no grievance between them.
4. Respondent-original complainant - Mustufamiya Mohammadmiya Malek is present before the Page 2 of 5 Downloaded on : Sun Sep 17 01:14:37 IST 2023 NEUTRAL CITATION R/CR.RA/1322/2022 ORDER DATED: 11/08/2023 undefined Court and is identified by learned advocate Mr. Amit Soliya. Mr. Soliya seeks permission to file Vakalatnama. Registry to accept the same. The learned advocate for the original complainant states that the complainant has received the entire amount as agreed between the parties and the complainant does not want to pursue the matter now in view of amicable settlement and has given consent for compounding the offence. The complainant also filed an affidavit to that effect.
5. Since the entire amount has been received by the complainant and the complainant has given consent for compounding the offence, keeping in mind the object of Section 147 of the NI Act, which is an enabling provision which provides for compounding the offence and may require the consent of the aggrieved for compounding the offence, however, the specific provision under Section 147, Page 3 of 5 Downloaded on : Sun Sep 17 01:14:37 IST 2023 NEUTRAL CITATION R/CR.RA/1322/2022 ORDER DATED: 11/08/2023 undefined inserted by way of amendment towards special law, would give overriding effect to sub- section (1) of Section 320 Criminal Procedure Code, 1973 (CrPC) as has been observed in the case of Damodar S. Prabhu v. Sayed Baba Lal, AIR 2010 SC 1907. Accordingly, as the dispute has been resolved and the entire amount has been paid to the complainant, in consonance with the object of the NI Act and the provisions under Section 147 thereof, the matters are considered as compounded.
6. In aforesaid view of the matter, the judgment and order passed by the learned Trial Court of conviction and sentence for the offence punishable under Section 138 of the NI Act, as affirmed by the learned Appellate Court, are quashed and set aside. The applicant stands acquitted.
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NEUTRAL CITATION R/CR.RA/1322/2022 ORDER DATED: 11/08/2023 undefined
7. The amount which is deposited before this Court and the Sessions Court in the sum of Rs.5,00,000/- and Rs.1,00,000/- be paid to the complainant on verification of the identity.
8. Accordingly, the present applications stand disposed of in the above terms. Connected applications, if any, also stand disposed of. Direct service is permitted.
(GITA GOPI,J) Maulik Page 5 of 5 Downloaded on : Sun Sep 17 01:14:37 IST 2023