Owner Of Nishant Sales ... vs State Of Gujarat
2021 Latest Caselaw 230 Guj

          R/CR.A/41/2020                                               ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CRIMINAL APPEAL NO. 41 of 2020
==========================================================
OWNER OF NISHANT SALES CORPORATION SUDHABEN BHARATBHAI
       KOTHARI THRO ASHOK JASWANTBHAI KOTHARI
                         Versus
               STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MS ROMA I FIDELIS(3529) for the Appellant(s) No. 1
MR BHAVESH P TRIVEDI(2731) for the Opponent(s)/Respondent(s) No. 2
MR RR TRIVEDI(941) for the Opponent(s)/Respondent(s) No. 2
MS C. M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                                   Date : 08/01/2021
ORAL ORDER

1. The present appeal filed by the appellant­ original complainant under section 378 of the Code of Criminal Procedure arises out of the judgment and order of acquittal dated 05.01.2019 passed by the Additional Sessions Judge, Rajkot at Jetpur (hereinafter referred to as 'the Appellate Court') in Criminal Appeal No.2 of 2015 and Criminal Revision No.7 of 2015.

2. The brief facts necessary for the purpose of deciding the appeal are that the appellant­ original complainant had filed a complaint against respondent no.2­original accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the said Act') before the Judicial Magistrate First Class, Jetpur (hereinafter referred to as 'the Trial Court'), which was

R/CR.A/41/2020 ORDER

registered as the Criminal Case No.186 of 2009. The Trial Court after considering the evidence on record vide the judgment and order dated 23.02.2015 convicted the respondent no.2­accused for the offence under section 138 of the said Act and directed him to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.5,000/­, and in default thereof, to undergo simple imprisonment for a period of one month and also to pay compensation of Rs.1,00,000/­ to the complainant. Being aggrieved by the said judgment and order passed by the Trial Court, the present appellant had preferred the Criminal Revision No.7 of 2015 seeking enhancement of sentence and quantum of compensation, whereas respondent no.2­accused had preferred the Criminal Appeal No.2 of 2015 challenging his conviction for the offence under section 138 of the said Act. The Appellate Court dismissed the Criminal Revision No.7 of 2015 and allowed the Criminal Appeal No.2 of 2015 preferred by respondent no.2­accused by setting aside judgment and order of Trial Court and further directing the respondent­accused to pay Rs.2,000,000/­ to the original complainant, which amount was deposited by respondent no.2­ accused pending the appeal. Being aggrieved by the said order passed by the Appellate Court, the present appeal has been preferred by the appellant­ original complainant.

3.   Learned          Advocate          Ms.       Roma        Fidelis        for       the





        R/CR.A/41/2020                                               ORDER



     appellant          vehemently submitted that the Trial

Court after appreciating the evidence on record had convicted respondent no.2­accused for the alleged offence under the said Act, which has been reversed by the Appellate Court by misinterpreting the evidence and solely on the ground that the respondent no.2­accused had deposited Rs.2,00,000/­ towards compensation, interest and cost.

4. However, learned Advocate Mr. Bhavesh P. Trivedi appearing for the respondent no.2­ drew the attention of the Court that the respondent no.2 had shown his bonafides by sending demand draft of Rs.50,000/­ to the complainant pending the trial, however, the same was refused by the complainant and in any case, the respondent no.2 thereafter had deposited Rs.2,00,000/­ i.e. four times of the amount due, in the court towards special compensation, interest and cost, as the amount to be paid to the complainant. According to him, in view of the decision of the Supreme Court in the case of Meters and Instruments Pvt. Ltd. Vs. Kanchan Mehta, reported in (2018) 1 SCC 560, the amount of compensation being more than adequate, the Appellate Court has rightly acquitted respondent no.2.

5. At the outset, it may be stated that there are certain facts which have not been disputed by either of the parties, like that the respondent no.2 had sent a demand draft of Rs.50,000/­ to

R/CR.A/41/2020 ORDER

the complainant during pendency of trial towards dishonoured cheque in question of Rs.50,000/­, which demand draft was refused by the complainant. It is also not disputed that respondent no.2 thereafter during pendency of appeal before the Appellate Court had deposited Rs.2,00,000/­ on 04.06.2018 in the Court and the Appellate Court having directed the said amount to be paid to the complainant, the same has been received by the complainant i.e. original appellant.

6. At this juncture, it would be beneficial to refer to the decision of the Supreme Court in the case of Meters and Instruments Pvt. Ltd. (Supra), whereby it has been observed by the Supreme Court that though the compounding of offence requires consent of both the parties, even in absence of such consent, the Court, in the interest of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. The precise relevant observations made in Para No.18 by the Supreme Court may be reproduced as under:

"18. From the above discussion following aspects emerge:

i) Offence under section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under section 139 but the standard of

R/CR.A/41/2020 ORDER

such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C.. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under

R/CR.A/41/2020 ORDER

Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances."

7. So far as the facts of the present case are concerned, though the respondent no.2 was convicted by the Trial Court, the Appellate Court acquitted him considering the fact that the respondent no.2 had deposited Rs.2,00,000/­ towards compensation alongwith interest and cost, which was four times amount of cheque in question, and therefore, it could be said that the complainant was fully compensated, applying the principle laid down in case of Meters and Instruments Pvt. Ltd. (Supra). Thus, the

R/CR.A/41/2020 ORDER

impugned order passed by the Appellate Court being discretionary in nature following the judgment of Supreme Court, this Court is not inclined to interfere with the said impugned order passed by the Appellate Court.

8. In that view of the matter, present appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.

(BELA M. TRIVEDI, J) MEHUL B. TUVAR