Gujarat High Court
Tikeshkumar Chandralal Ratwani ... vs Shankarlal Bherumal Sevani ... on 26 October, 2021
Bench: Umesh A. Trivedi
R/CR.RA/420/2021 JUDGMENT DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 420 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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TIKESHKUMAR CHANDRALAL RATWANI PROPRIETOR OF KASHVI
FASHION
Versus
SHANKARLAL BHERUMAL SEVANI PROPRIETOR OF MONIKA
CREATION
======================================
Appearance:
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
MR RASHMIN MAKWANA(3758) for the Respondent(s) No. 1
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 26/10/2021
ORAL JUDGMENT
R/CR.RA/420/2021 JUDGMENT DATED: 26/10/2021
1. Shri Rashmin Makwana, learned advocate for
respondent no.1 - complainant places on record affidavit
affirmed by the complainant, who is also present before the
Court and duly identified by him alongwith a settlement
agreement duly signed by the accused as also the
complainant. The said affidavit alongwith the settlement
agreement is ordered to be taken on record.
2. RULE. Shri Rashmin Makwana, learned advocate,
waives service of notice of rule on behalf of respondent no.1
and Ms. Jirga Jhaveri, learned Additional Public Prosecutor,
waives service of notice of rule on behalf of respondent no.2.
3. This Criminal Revision Application is directed against
an order passed by the learned Additional Chief Metropolitan
Magistrate, Negotiable Instruments Act, Court No.35,
Ahmedabad dated 15.07.2019 in Criminal Case No.1613 of
2014 convicting the applicant for an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'the Act') and ordered him to
undergo 2 years Simple Imprisonment Simple Imprisonment
and imposed fine of Rs.1,50,000/- and in default of payment of
fine to undergo 3 months Simple Imprisonment. The said
judgment of conviction and order of sentence was carried in
Appeal being Criminal Appeal No. 557 of 2019, which also
came to be dismissed by the learned Additional Sessions
Judge, Court No.27, City Sessions Court, Ahmedabad vide order
dated 14.06.2021. Both these orders are under challenge in
this Criminal Revision Application.
R/CR.RA/420/2021 JUDGMENT DATED: 26/10/2021
4. During pendency of this application, the parties
have settled the disputes outside the Court. The settlement
agreement signed by the original complainant, who is present
in the Court and duly identified by his advocate, states that the
agreed amount between the parties has already been paid to
him, and therefore, there is no grievance remaining to be
resolved further. At the same time, it is stated in the
compromise deed that if the judgment of conviction and order
of sentence passed against the applicant - accused is quashed
and set aside, he has no objection for the same.
5. However, in view of compounding arrived at
between the parties and when the matter is settled between
them, pursuant to which the cheque amount is already paid to
the complainant, as disclosed in the affidavit, the judgment of
conviction and order of sentence passed by the learned
Magistrate is required to be quashed and set aside. In view of
Section 147 of 'the Act', when offence is made compoundable,
the genuine compounding entered into between the parties is
required to be encouraged. Considering the affidavit, it is clear
that the compounding is genuine, and therefore, the impugned
judgment of conviction and order of sentence passed by the
learned Additional Chief Metropolitan Magistrate, Negotiable
Instruments Act, Court No.35, Ahmedabad dated 15.07.2019 in
Criminal Case No.1613 of 2014 confirmed by the learned
Additional Sessions Judge, Court No.27, City Sessions Court,
Ahmedabad vide order dated 14.06.2021 are hereby quashed
and set aside.
R/CR.RA/420/2021 JUDGMENT DATED: 26/10/2021
6. In view of sub-section (8) of Section 320 of the Code
of Criminal Procedure, 1973, the applicant is acquitted of the
charge levelled against him. Since the compounding between
the parties is arrived at revisional stage before this Court, in
view of the judgment of the 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 the cheque amount. However, in view of
paragraph 17 of the said judgment, a discretion is granted to
the competent Court to reduce the cost on specific facts and
circumstances of the case.
7. Mr. R.J. Goswami, learned advocate for the
applicant, submits that since the applicant is in financial crisis,
he had to manage the fund through his relatives. Considering
the financial crisis, a token amount of cost of Rs.2500/- in
view of paragraph 17 of the aforesaid judgment is awarded to
the applicant - accused and it is to be deposited with Gujarat
High Court Advocates Law Library within a period of two weeks
from today. Registry is hereby directed to issue final writ of
this Criminal Revision Application after ascertaining the cost
amount deposited by the applicant.
8. Since the cheque amount is already paid to the
complainant, the amount deposited before the appellate Court
by the accused is ordered to be refunded to the accused by an
account payee cheque on verifying the identity.
R/CR.RA/420/2021 JUDGMENT DATED: 26/10/2021
9. Accordingly, the present Criminal Revision
Application shall stand disposed of as allowed. Rule is made
absolute to the aforesaid extent.
(UMESH A. TRIVEDI, J.)
siji
