Gujarat High Court
Rameshbhai Gandabhai Suvadiya vs State Of Gujarat on 1 October, 2021
Bench: Umesh A. Trivedi
R/CR.RA/672/2021 ORDER DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 672 of 2021
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RAMESHBHAI GANDABHAI SUVADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR NAUMAN S QURESHI(10669) for the Applicant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. JIRGA JHAVERI, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 01/10/2021
ORAL ORDER
Mr. Mahesh K. Poojara, learned advocate has instruction to
appear for and on behalf of respondent No.2 i.e. original
complainant. He is in process of filing his appearance on behalf of
the original complainant. Registry is directed to accept the
Vakalatnama of Mr. Mahesh K. Poojara for and on behalf of
respondent No.2-original complainant viz. Karsanbhai Laxmanbhai
Charakta, who is present before the Court and duly identified by Mr.
Mahesh Poojara, learned advocate.
[1.0.] RULE. Learned APP Ms. Jirga Jhaveri, waives service of
notice of rule for and on behalf of respondent No.1- State of Gujarat
as also learned advocate Mr. Mahesh K. Poojara, waives service of
notice of rule for and on behalf of respondent No.2 - original
complainant.
R/CR.RA/672/2021 ORDER DATED: 01/10/2021
[2.0.] This revision application is directed against the judgment
of conviction and order of sentence dated 13.12.2018 passed by the
learned Judicial Magistrate First Class, Viramgam in Criminal Case
No.908 of 2016 convicting the applicant-accused for an offence under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'the Act') and directed him to undergo simple
imprisonment of 06 months as also imposed a compensation of
Rs.4,45,000/-, and in default of payment of compensation, he is
ordered to undergo further 02 months of simple imprisonment. The
said order has been confirmed by the learned 3rd Additional Sessions
Judge, Viramgam, vide judgment and order dated 14.09.2021
rendered in Criminal Appeal No.03 of 2019. Hence, both these orders
are under challenge before this Court.
[3.0.] Mr. Mahesh K. Poojara, learned advocate has submitted
that at the time when the complaint for an offence under Section 138
'the Act' was filed, one Mr. Dilipkumar Prahladbhai Mehta was the
Manager of respondent No.2 - The Bhagyoday Sarafi Sahakari
Mandali Limited, who has now retired. In this application, one Mr.
Karsanbhai Laxmanbhai Charakta is now Asst. Manager of the said
Society and he has affirmed an affidavit on 28.09.2021, and placed
on record in this case. Along with affidavit, there is a Resolution
annexed with it authorizing him to represent the society in cases
before the Court as also withdrawal of the cases. Over and above
that, along with affidavit there is no due certificate issued by the
Manager of the Society, signed by Manager, is also annexed. It is also
mentioned in the affidavit that as on 23.09.2021, there is no due from
the applicant - accused and grievance against him is satisfied.
Therefore, Mr. Karsanbhai Laxmanbhai Charakta, Asst. Manager of
the said Bank has no objection if the present application is allowed
and the applicant - accused is acquitted of the charge. The said
R/CR.RA/672/2021 ORDER DATED: 01/10/2021
affidavit along with annexures is taken on record.
[4.0.] Since the matter is settled between the parties and in
view of Section 147 of the Negotiable Instruments Act, the offence is
made compoundable, now the settlement arrived at between the
parties is required to be encouraged. In view of the affidavit affirmed
by the original complainant as per the terms recorded therein, the
applicant - accused has paid the amount as stated in it. It is further
stated therein that the respondent No.1-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 - accused is quashed and set aside. In view of the
settlement arrived at between the parties, the judgment of
conviction and order of sentence dated 13.12.2018 passed by the
learned Judicial Magistrate First Class, Viramgam in Criminal Case
No.908 of 2016 as also the judgment and order dated 14.09.2021
passed by the learned 03rd Additional Sessions Judge, Viramgam
rendered in Criminal Appeal No.3 of 2019, are hereby quashed and
set aside.
[5.0.] 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.
[6.0.] 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 Gujarat 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
R/CR.RA/672/2021 ORDER DATED: 01/10/2021
the cost amount or waive the same on specific facts and
circumstances of a case.
[7.0.] Considering the fact that applicant - accused has repaid
the loan amount of the Bank along with interest, it appears that his
attempts were genuine but he could not repay the same in time and
therefore, the present complaint has come to be filed against him
and he is convicted for an offence under 'the Act'. Therefore, ends of
justice would be met, if the applicant - accused is directed to deposit
an amount of Rs.25,000/-(Rupees Twenty Five Thousand) towards the
cost of this litigation to the Gujarat State Legal Services Authority
within a period of four weeks from today.
[8.0.] The application stands disposed of as allowed. Rule is
made absolute to the above extent. Direct service is permitted.
(UMESH A. TRIVEDI, J)
Lalji Desai
