Gujarat High Court
Dildaarkhan Ilaykhan Pathan vs State Of Gujarat on 7 October, 2021
Bench: Umesh A. Trivedi
R/CR.RA/638/2021 ORDER DATED: 07/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 638 of 2021
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DILDAARKHAN ILAYKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR MA KHARADI(1032) for the Applicant(s) No. 1,2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 07/10/2021
ORAL ORDER
Mr. Jarjeeskhan Pathan, 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.Jarjeeskhan Pathan for and on behalf of respondent No.2-original
complainant viz. Dhirajlal Manilal Prajapati, who is present before the
Court and duly identified by Mr. Jarjeeskhan Pathan, learned advocate.
1. 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. Jarjeeskhan Pathan, waives service of notice
of rule for and on behalf of respondent No.2- original complainant.
2. This revision application is directed against the judgment of
conviction and order of sentence dated 16.09.2019 passed by the
learned Additional Chief Metropolitan Magistrate, Court No.28,
Ahmedabad in Criminal Case No.407 of 2016 convicting the
petitioners-accused for an offence under Section 138 of the
R/CR.RA/638/2021 ORDER DATED: 07/10/2021
Negotiable Instruments Act, 1881 (hereinafter referred to as 'the
Act') and directed them to undergo simple imprisonment of 2
years as also imposed a fine of double amount of cheque, and in
default of payment of fine, they are ordered to undergo further 02
months of simple imprisonment. The said order has been
confirmed by the learned Additional Sessions Judge, City Sessions
Court, Ahmedabad, vide judgment and order dated 27.08.2021
rendered in Criminal Appeal No.648 of 2019. Hence, both these
orders are under challenge before this Court.
3. Mr. Jarjeeskhan Pathan, learned advocate placed on record
compromise deed entered into between the petitioner-accused as
also the complainant. As recorded in the terms of settlement that
he has no objection if this Revision Application is allowed and the
judgment of conviction and order of sentence recorded by the
Competent Court and confirmed by the Appellate Court is set
aside.
4. Since the matter is settled between the parties and in view of
Section 147 of 'the Act', the offence is made compoundable, now
the settlement arrived at between the parties is required to be
encouraged. In view of the compromise deed affirmed by the
original complainant as per the terms recorded therein, the
applicants- accused have paid the amount as stated in it. It is
further stated therein that 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 applicants - 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 16.09.2019
R/CR.RA/638/2021 ORDER DATED: 07/10/2021
passed by the learned Additional Chief Metropolitan Magistrate,
Court No.28, Ahmedabad in Criminal Case No.407 of 2016 as also
the judgment and order dated 27.08.2021 passed by the learned
Additional Sessions Judge, City Sessions Court, Ahmedabad, in
Criminal Appeal No.648 of 2019, are hereby quashed and set aside.
5. In view of sub- Section (8) of Section 320 of the Code of Criminal
Procedure, 1973, the applicants are hereby acquitted from all the
charges levelled against them.
6. 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 are required to pay cost to be deposited
with Gujarat State Legal Services Authority at the rate of 15% of
cheque amount. Therefore, ends of justice would be met, if the
applicants - accused are directed to deposit an amount of
Rs.42,000/-(Forty Two Thousand only) towards the cost of this
litigation to the Gujarat State Legal Services Authority within a
period of four weeks from today.
7. It is submitted that as recorded in the order passed by this Court,
petitioners- accused had deposited an amount of Rs.84,900/- of all
the three cases filed against them by the very complainant. As per
the terms of the agreement and as agreed by the petitioners-
accused, the said amount may be withdrawn by the complainant
herein i.e. respondent no.2.
8. The Trial Court is directed to refund the said amount to the
respondent no.2- original complaint through an account payee
cheque after verifying identity of the complainant.
R/CR.RA/638/2021 ORDER DATED: 07/10/2021
9. The application stands disposed of as allowed. Rule is made
absolute to the above extent. Direct service is permitted.
(UMESH A. TRIVEDI, J)
MEHUL
