NEUTRAL CITATION
R/CR.MA/14411/2023 ORDER DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14411 of 2023
In
R/CRIMINAL REVISION APPLICATION NO. 1055 of 2023
With
R/CRIMINAL REVISION APPLICATION NO. 1055 of 2023
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HABIBBHAI GULAMHUSSAIN BHAYLA
Versus
STATE OF GUJARAT
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Appearance:
MR VALMIK M VYAS(6178) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/08/2023
ORAL ORDER
Order in Criminal Misc. Application
1. Advocate Mr. Valmik M.Vyas stated that delay of 120 days occurred in filing the revision application since the applicant was in process of receiving certified copy and also was proceeding to get the matter settle through community members and relatives, as was business Page 1 of 5 Downloaded on : Sun Sep 17 01:41:46 IST 2023 NEUTRAL CITATION R/CR.MA/14411/2023 ORDER DATED: 18/08/2023 undefined transaction with regard to purchase of goods. Mr. Vyas submitted that the dispute was regarding the due amount and only after resolving the same, could prefer the revision application primarily on the ground that the applicant has now manage the cheque amount and also paid the same to the complainant, and the disputes have been resolved.
2. Considering the averments made in the application and as the delay is sufficiently explained and in view of the facts and circumstances of the case, the delay of 120 days caused in filing the revision application is condoned. The application is allowed.
3. Let the Criminal Revision Application be listed today itself.
Order in Criminal Revision Application
1. Advocate Mr. Valmik M.Vyas, learned Page 2 of 5 Downloaded on : Sun Sep 17 01:41:46 IST 2023 NEUTRAL CITATION R/CR.MA/14411/2023 ORDER DATED: 18/08/2023 undefined advocate for the applicant states that Advocate Mr. Kamlesh Kotai will appear on behalf of original complainant. The Vakalatnama of Advocate Mr. Kotai be accepted
2. Rule. Learned APP waives service of notice of Rule on behalf of the respondent - State and Mr. Kamlesh Kotai, learned advocate waives service of notice Rule on behalf of the respondent no.2. By consent Rule is fixed forthwith.
3. The Respondent no.2, Dashratkumar Kasturchand Maheshwari - original complainant is present before the Court, who is identified by learned advocate Mr. Kamlesh Kotai. The respondent no.2 - original complainant affirms the fact in the affidavit and states that he has received Rs.47,610/- by way of cash from the friends and relatives of the applicant, and, thus urged to compound the offence.
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4. Since the amount of Rs.47,610/- 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, 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 N.I. Act and the provisions under Section 147 thereof, the matter is considered as compounded. Page 4 of 5 Downloaded on : Sun Sep 17 01:41:46 IST 2023
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5. In aforesaid view of the matter, the judgment and order passed by the learned Additional Judicial Magistrate, First Class, Modasa at Aravalli in Criminal Case No.547 of 2018 dated 19.12.2022 for the offence punishable under Section 138 of the NI Act, is quashed and set aside.
6. Accordingly, the present application stands disposed of in the above terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(GITA GOPI,J) Pankaj Page 5 of 5 Downloaded on : Sun Sep 17 01:41:46 IST 2023