R/CR.RA/1287/2022 ORDER DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1287 of 2022
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DHARMENDRABHAI NAVINCHANDRA JAYSWAL
Versus
KAMLESHBHAI BALSHANKAR DAVE
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Appearance:
MR YOGESHKUMAR A RATANPARA(7260) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 23/02/2023
ORAL ORDER
Rule. Learned APP Mr. Ronak Raval waives service of notice of rule on behalf of respondent State.
1. By way of this revision application, the applicant-original accused has prayed to quash and set aside the judgment and order dated 03.12.2018 passed by the learned 3 rd Addl. Senior Civil Judge and Addl. Chief Judicial Magistrate, Junagadh in Criminal Case No.584 of 2015 whereby the applicant came to be convicted for the offence punishable u/s.138 of N.I. Act, which was confirmed vide judgment and order dated 28.11.2022 passed by the learned Addl. Sessions Judge, Junagadh in Criminal Appeal No.68 of 2018.
2. Learned advocate Ms. Mital Vasani states that she has Page 1 of 4 Downloaded on : Fri Feb 24 20:55:58 IST 2023 R/CR.RA/1287/2022 ORDER DATED: 23/02/2023 instructions to appear on behalf of respondent No.2 - original complainant in this matter. She is granted permission to file her Vakalatnama with the Registry. The affidavit filed by the original complainant is taken on record.
3. Learned advocates on both the sides jointly stated that the parties have settled the dispute amicably outside the Court. The respondent No.2 has also filed an Affidavit wherein, he has averred that the dispute between him and the applicant has been amicably resolved with the intervention of elderly members of the society and common friends. It is averred that he has no objection if the impugned orders passed by both the Courts below are quashed and set aside and prayed that the entire amount deposited by the applicant before the trial Court may be permitted to be withdrawn by him.
4. In this background, a reference to the judgment of Apex Court in the case of Vinay Devanna Nayak Vs Ryot Seva Sahakari Bank Ltd. reported in AIR 2008 SC 716 would be apposite. In paras - 17 & 18 of the judgment, it has been observed thus :
"17. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd. V. Indian Technologists and Engineers, (1996) 2 SCC 739, the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operation and Page 2 of 4 Downloaded on : Fri Feb 24 20:55:58 IST 2023 R/CR.RA/1287/2022 ORDER DATED: 23/02/2023 credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the party of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of banking operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realized this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002)".
18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We therefore dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent."
5. In the present case, the parties have arrived at an out of Court settlement and the respondent-complainant has also filed an affidavit to that effect, which is on record. Considering the above aspect and in view of the principle laid down by the Apex Court in the aforesaid decision, this Court is of the opinion that the parties could be permitted to compound the offence since no fruitful purpose would be served in continuing with the litigation as it would lead to wastage of precious judicial time.
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6. In the result, the application is allowed. Both the impugned judgment and order dated 03.12.2018 passed by the learned 3rd Addl. Senior Civil Judge and Addl. Chief Judicial Magistrate, Junagadh in Criminal Case No.584 of 2015 as also the judgment and order dated 28.11.2022 passed by the learned Addl. Sessions Judge, Junagadh in Criminal Appeal No.68 of 2018 are quashed and set aside. The applicant-convict is acquitted of all the charges levelled against him. The original complainant is permitted to withdraw the entire amount deposited by the applicant before the trial Court concerned after following due procedure. Rule is made absolute. Direct service is permitted.
(SAMIR J. DAVE,J) PRAVIN KARUNAN Page 4 of 4 Downloaded on : Fri Feb 24 20:55:58 IST 2023