Punit Hareshbhai Varde vs State Of Gujarat
2021 Latest Caselaw 12360 Guj

     R/CR.RA/312/2021                                ORDER DATED: 25/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 312 of 2021

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                        PUNIT HARESHBHAI VARDE
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ANKIT Y BACHANI(5424) for the Applicant(s) No. 1
MR MUKUNDKUMAR A THAKKAR(9034) for the Respondent(s) No. 2
MR J K SHAH APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                             Date : 25/08/2021

                              ORAL ORDER

1. By way of present Criminal Revision Application under Sections 397, 401 read with Section 482 of the Criminal Procedure Code, the applicant - original accused has challenged the legality and validity of impugned order dated 31.03.2021 passed in Criminal Appeal No. 50 of 2019 by learned Sessions Judge, Deesa, District Banaskantha as well as order dated 04.05.2019 passed in Criminal Case No. 2469 of 2015 by learned Judicial Magistrate First Class, Deesa and consequently, has requested the Court to acquit the applicant from the charges levelled against him.

2. The case in brief of the applicant is that the original complainant - respondent No.2 had filed a complaint under Section 138 of the Negotiable Instruments Act against the present applicant in pursuance of non-recovery of an amount to the tune of Rs.2,80,000/- in respect of dishonor of cheque bearing No.024793 dated 20.09.2015 of State Bank of India, which resulted into filing of Criminal Case No.2469 of 2015 before learned Judicial

R/CR.RA/312/2021 ORDER DATED: 25/08/2021

Magistrate First Class, Deesa. After considering the material on record, learned Judicial Magistrate First Class, Deesa, vide order dated 04.05.2019 was pleased to pass an order of conviction in which the applicant was sentenced to simple imprisonment for a period of one year and further directed to pay the cheque amount of Rs.2,80,000/- to the complainant and in default of payment of fine to undergo further three months' simple imprisonment. Against this order passed by learned Judicial Magistrate First Class, the applicant filed Criminal Appeal No. 50 of 2019 before the Sessions Court, Deesa in view of Section 374 of the Criminal Procedure Code, however learned Appellate Judge was pleased to dismiss the same vide judgment and order dated 31.03.2021 and it is these orders which are against the applicant are made subject matter of present Criminal Revision Application.

3. The detailed contents of background of facts are not being mentioned in view of the fact that the settlement has taken place between the parties.

4. Learned advocate Mr. Ankit Bachani appearing on behalf of the applicant - accused has submitted that there was no offence committed by the applicant and there was no ill-motive on the part of the applicant. However, he has submitted that during the course of present proceedings, the settlement has taken place between the complainant and the applicant and in response to that, a specific settlement affidavit is filed in the present proceedings affirmed by the original complainant - respondent No.2 herein and the terms of the settlement have been understood between both the sides. To apprise the Court, learned advocate Mr. Bachani has drawn the attention of this Court to paragraphs 3, 4 and 5 of the settlement affidavit filed by respondent No.2 and accordingly, has

R/CR.RA/312/2021 ORDER DATED: 25/08/2021

requested to dispose of the present proceedings in view of the offence being compoundable and terminate the proceedings.

5. As against this, learned advocate Mr. Mukundkumar Thakkar appearing on behalf of respondent No.2 has also confirmed the fact of settlement and has clearly conveyed to the Court that the original complainant through power-of-attorney has affirmed the contents of the settlement deduced in writing on oath vide affidavit dated 06.04.2021 reflecting on page 97 onward and thereby, has submitted that the complainant is no longer interested in prosecuting the matter any further nor is interested in confirming the orders of conviction of the applicant and has requested to dispose of the proceedings.

6. On consideration of aforesaid circumstances which are stated, learned advocate Mr. Bachani has submitted that since the settlement has taken place and the Revision Application is to be disposed of in terms of the settlement as per the guidelines issued by the Hon'ble Apex Court about deposit of certain percentage of cheque amount to be paid to the legal services authority, the same will be waived and in the alternative, has submitted that at least, the reasonable amount may be quantified in view of peculiar background of facts. Learned advocate Mr. Bachani, under the instructions, has submitted that the applicant was suffering from Covid-19 in this period of pandemic situation and further, on account of that, his financial condition has been deteriorated to such an extent in which it was difficult for him even to meet with the present settlement and it is on account of help of family members, this arrangement could be made and therefore, has requested that keeping in view the financial crunch of the applicant, some reasonable amount be quantified and under the

R/CR.RA/312/2021 ORDER DATED: 25/08/2021

instructions, learned advocate Mr. Bachani has submitted that an amount of Rs.20,000/- may be quantified to be deposited before the Legal Services Authority for which the applicant is ready and willing to undertake before this Court.

7. To this request made by learned advocate Mr. Bachani, learned advocate Mr. Thakkar has no objection and therefore, keeping in view this peculiar background, learned advocates have left it to the discretion of the Court.

8. Having heard learned advocates appearing for the respective parties and having gone through the aforesaid material produced on record before this Court, it appears that irrespective of order of conviction, during the passage of time, the settlement has taken place between the parties in which certain terms have been deduced in writing by the consenting party i. e. original complainant and the said terms have been stated in the settlement affidavit filed by respondent No.2 who is original complainant. The relevant extract from the said affidavit, the Court deems it appropriate to reproduce hereunder :-

"5. It is humbly stated that presently, during pendency of Revision petition, applicant had approached complainant to amicably do the settlement by paying the amount of Rs.2,80,000/- (Rupees Two Lacs Eighty Thousand); which is in accordance to following manner :

               (a)          Rs.1,00,000/- (One Lac) had been already
               given to respondent no.2,

               (b)          Rs.80,000/- (Eighty thousand) deposited

by applicant in Court during appeal proceedings, once released by court; to be directly handed over to respondent no.2,

(c) For remaining Rs.1,00,000/- would be paid in five monthly installments of Rs.20,000/- to respondent no.2 - Original Complainant, which would commence from 1-5-2021,

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I, Respondent no. 2 - Original complainant is ready to accept the amount of Rs.2,80,000/- as full and final settlement total outstanding dues and thereby, issue no due certificate in favour of the applicant. Further, I

- complainant, in future will not claim for any dues against the applicant herein."

9. The aforesaid terms are clearly accepted to be observed by both the sides and the applicant has undertaken to abide by the same and as such, in view of this background, there is no point in precipitating the issue any further. Hence, the Court is of the considered opinion that the present proceedings deserves to be disposed of in the light of the aforesaid compromise.

10. At this stage, learned advocate Mr. Bachani has requested about reasonable amount to be paid to the legal services authority in view of observations made by the Hon'ble Court in a decision reported in 2010 (5) SCC 663, inviting attention to paragraphs 21 and 25 of the said decision and has requested initially to waive and alternatively, has requested to reasonably quantify. Considering the observations made by the Hon'ble Apex Court and in view of peculiar background of financial crunch of the present applicant and in view of insistence on high amount, the Court is of the opinion that the interest of justice would be met if a lump-sum amount of Rs.20,000/- is ordered to be deposited before the Legal Services Authority, High Court of Gujarat which would meet the ends of justice since the applicant has shown bona fide and the Court is of the opinion that looking to the contents and the manner in which the issue is resolved, there appears no mala fide intent of the applicant to drag on the issue any further. Accordingly, the Court is inclined to consider the request whereby the applicant is directed to deposit an amount of Rs.20,000/- within a period of three weeks from today before the Legal Services Authority, High Court of Gujarat.

R/CR.RA/312/2021 ORDER DATED: 25/08/2021

11. In view of aforesaid background of fact, the present Criminal Revision Application is disposed of in terms of settlement and consequent thereof, impugned order dated 31.03.2021 passed in Criminal Appeal No. 50 of 2019 by learned Sessions Judge, Deesa, District Banaskantha as well as order dated 04.05.2019 passed in Criminal Case No. 2469 of 2015 by learned Judicial Magistrate First Class, Deesa are quashed and set aside and the applicant is acquitted in view of Section 320(8) of the Criminal Procedure Code from the charges for which he has been tried and convicted.

12. The Revision Application accordingly stands disposed of in terms of settlement.

(ASHUTOSH J. SHASTRI, J)

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