Bharatbhai Tahelram @ Tahilram ... vs State Of Gujarat
2021 Latest Caselaw 17753 Guj

     R/CR.RA/1257/2019                          ORDER DATED: 25/11/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL REVISION APPLICATION NO. 1257 of 2019

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       BHARATBHAI TAHELRAM @ TAHILRAM CHANDRA
                            Versus
                     STATE OF GUJARAT
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Appearance:
MR KARTIK V PANDYA(2435) for the Applicant(s) No. 1
MR PM DAVE(263) for the Respondent(s) No. 2
MS. C.M.SHAH, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                           Date : 25/11/2021

                             ORAL ORDER

1. This revision application is directed against the judgment of conviction and order of sentence dated 22.02.2018 passed by the learned Additional Chief Metropolitan Magistrate, N.I.Act, Court No.36, Ahmedabad in Criminal Case No.74 of 2016 convicting the applicant-accused for an offence under Section 138 of the Negotiable Instruments Act, 1881 and directed him to undergo simple imprisonment of 1 year and to pay the amount of cheque, and in default of payment of cheque amount, he is ordered to undergo further 02 months of simple imprisonment. The said order has been confirmed in appeal being Criminal Appeal No.117 of 2018 by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad, dated 12.09.2019.

2. Mr. P.M.Dave, learned advocate for respondent No.2 - Bank has produced on record a letter dated 25.09.2021

R/CR.RA/1257/2019 ORDER DATED: 25/11/2021

addressed to the present applicant regarding settlement of Axis Bank Credit Card / Home Loan No.PHR017500986192 stating therein that the Bank is agreeable to accept the amount of Rs.5,00,000/- against the total outstanding of the aforesaid credit card / home loan, which is to be made on 30.09.2021. The copy of pay order dated 23.09.2021, copy of which is produced along with the letter, shows that it is issued by the State Bank of India and it has been credited into the Axis Bank. The said communication is taken on record.

3. The original complainant, Mr. Bhairusinh K. Chadana, authorized by the Axis Bank, is present before the Court and duly identified by Mr. P.M.Dave, learned advocate representing him.

4. Since the matter is settled between the parties and in view of Section 147 of the Negotiable Instruments Act, the offence is made compoundable, the settlement arrived at between the parties is required to be encouraged. Considering the fact that the amicable settlement arrived at between the parties and the complainant - Bank is not interested in proceeding further against the present applicant on dues being paid and Bank is satisfied with the same, the judgment of conviction and order of sentence imposed upon the applicant is required to be quashed and set aside. The respondent No.2- original complainant is not interested in sending the applicant in jail and he has no objection if the judgment of conviction and order of sentence imposed upon the applicant is quashed and set aside.

R/CR.RA/1257/2019 ORDER DATED: 25/11/2021

5. In view of the settlement arrived at between the parties, the judgment of conviction and order of sentence dated 22.02.2018 passed by the learned Additional Chief Metropolitan Magistrate, N.I.Act, Court No.36, Ahmedabad in Criminal Case No.74 of 2016 as also the judgment of conviction and order of sentence dated 12.09.2019 passed by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad in Criminal Appeal No.117 of 2018, are hereby quashed and set aside.

6. In view of sub- Section (8) of Section 320 of the Code of Criminal Procedure, 1973, the applicant is hereby acquitted from all the charges levelled against him.

7. Though compounding under Section 147 of the Act is made permissible, in view of judgment of the Hon'ble Supreme Court in the case of Damodar S. Prabhu vs Sayed Babalal reported in AIR 2010 SC 1907, the accused is required to pay cost, to be deposited with State Legal Services Authority, at the rate of 15% of cheque amount. However, in view of para-17 of the said judgment, a discretion is granted to the Competent Court to reduce the cost on specific facts and circumstances of a case.

7.1 Considering the financial position of the applicant - accused, the original complainant - Bank has settled the matter at half of the cheque amount involved in the present case. In view thereof, the applicant - accused is directed to pay the cost of Rs.25,000/- with the Gujarat State Legal Services Authority within a period of four (04) weeks from today, as aforesaid.

R/CR.RA/1257/2019 ORDER DATED: 25/11/2021

8. Mr. Kartik Pandya, learned advocate for the applicant submitted that in all the applicant has deposited Rs.4,75,000/- before the trial Court and Appellate Court during the pendency of the appeal as also the present revision application, which is according to terms agreed between the original complainant and accused and therefore, the same is to be refunded to the applicant - accused.

9. The concerned trial Court as also the Appellate Court is directed to refund / disburse the amount deposited by the applicant before it through A/c payee cheque after ascertaining proper identity, to which, the original complainant - Bank has no objection.

10. It is made clear that, If the applicant fails to deposit the said amount within the time prescribed, as aforesaid, he shall be taken into custody by issuing non-bailable warrant by the learned trial Court and the present order shall stand automatically recalled and he would serve the sentence. Registry is hereby directed to issue final writ of this revision application after ascertaining that the aforesaid cost amount is deposited by the applicant.

11. Accordingly, the application stands disposed of as allowed. Rule made absolute to the above extent. Direct service is permitted.

(UMESH A. TRIVEDI, J) Lalji Desai