Gujarat High Court
M/S Sun Impex A Partnership Firm ... vs State Of Gujarat on 29 October, 2021
Bench: Umesh A. Trivedi
R/CR.RA/1605/2019 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1605 of 2019
With
R/CRIMINAL REVISION APPLICATION NO. 1606 of 2019
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M/S SUN IMPEX A PARTNERSHIP FIRM THRO ITS PARTNER
NARESHCHANDRA RAMANLAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR TARAK DAMANI(6089) for the Applicant(s) No. 2,3
MS VISHWA A SHASTRI(10559) for the Applicant(s) No. 1
PRANAV U RAVAL(9475) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR BHARAT JANI(352) for the Respondent(s) No. 2
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 29/10/2021
ORAL ORDER
Heard Ms.Mohini Bhavsar, learned advocate for Mr.Bharat
Jani, learned advocate for Respondent No.2 - original
complainant, Sanjay Rasiklal Shah, tendered an affidavit though
titled as affidavit for withdrawal, it has been so stated in view of
the fact that there is one another acquittal appeal filed by the
Respondent No.2- original complainant. It is stated in the
affidavit that matter is settled between the parties. The said
settlement agreement is also annexed with the affidavit, which is
ordered to be taken on record. Respondent No.2 herein, Sanjay
Rasiklal Shah, is present before the Court and duly identified by
Ms.Mohini Bhavsar, learned advocate for Mr.Bharat Jani, learned
advocate for Respondent No.2 representing him.
Ms.Vishwa Shastri, learned advocate for petitioner/s
submitted that as per the settlement, the amount is already paid
R/CR.RA/1605/2019 ORDER DATED: 29/10/2021
to Respondent No.2-complainant. The amount of Rs.4,57,000/-
deposited before the Registry of this Court at the time of
admission hearing of the aforesaid Criminal Revision Application,
which is required to be refunded to the applicant-petitioner. The
Registry is directed to refund the said amount to the applicants-
petitioners by way of an account payee cheque after
ascertaining the identity.
It is further submitted by Ms.Shastri, learned advocate for
the petitioners that amount deposited before the appellate Court
during the pendency of proceedings is also required to be
refunded back to the applicants -petitioners by way of account
payee cheque after ascertaining the identity.
RULE. Ms. Jirga Jhaveri, learned Additional Public
Prosecutor, waives service of notice of rule on behalf of
respondent no.1 - State and Ms.Mohini Bhavsar, learned
advocate for Mr.Bharat Jani, learned advocate for Respondent
No.2 waives service of notice of rule on behalf of respondent
no.2.
These Criminal Revision Applications are directed against
orders passed by the learned Additional Chief Metropolitan
Magistrate, Court No.30, Ahmedabad both dated 07.09.2017 in
Criminal Case Nos.1394 of 2016 and 1718 of 2016 convicting
the applicants for an offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (hereinafter referred to
as 'the Act') and ordered them to undergo one year Simple
Imprisonment. Over and above that the cheque amount was
ordered to be paid to the complainant as compensation and in
default of payment of compensation, they are ordered to
R/CR.RA/1605/2019 ORDER DATED: 29/10/2021
further undergo two months Simple Imprisonment. The said
judgments of conviction and orders of sentence were carried in
Appeal being Criminal Appeal No. 664 of 2017 and 665 of 2017
which also came to be dismissed by the learned Additional
Sessions Judge, Court No.23, City Sessions Court, Ahmedabad
both dated 22.11.2019. These orders are under challenge in
these Criminal Revision Applications.
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
judgments of conviction and orders of sentence passed by the
learned Additional Chief Metropolitan Magistrate, Court No.30,
Ahmedabad both dated 07.09.2017 in Criminal Case Nos.1394
of 2016 and 1718 of 2016 confirmed by the learned Criminal
Appeal No. 664 of 2017 and 665 of 2017 which also came to be
dismissed by the learned Additional Sessions Judge, Court
No.23, City Sessions Court, Ahmedabad both dated 22.11.2019
are hereby quashed and set aside.
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, the
R/CR.RA/1605/2019 ORDER DATED: 29/10/2021
applicant is required to be imposed cost in view of the decision
of the Hon'ble Supreme Court in the case of Damodar S.
Prabhu Vs. Sayed Babalal reported in AIR 2010 SC 1907.
In view of para-17 thereof, since the applicants - petitioners have
paid the total amount to the complainant and it being huge
amount, according to the applicants, in present days of crisis,
they request for reduction of cost to be paid. In view of para-17
of the aforesaid judgment, it is left to the discretion of the Court
and considering the plight of the applicants-petitioners, it is
ordered that applicants - petitioners shall deposit an amount of
Rs.4,30,000/- being 10% of the total cheque amount of both
these revision applications being Rs.43,00,000/- with Gujarat
State Legal Services Authority within a period of 4 weeks form
today. If the applicants fail to deposit the said amount within
the time prescribed, as aforesaid, they shall be taken into
custody by issuing non-bailable warrant by the learned trial
Court and the present order shall stand automatically recalled
and they would serve the sentence. Registry is hereby
directed to issue final writ of these revision applications after
ascertaining that the aforesaid cost amount is deposited by the
applicants.
Accordingly, the present Criminal Revision Applications
shall stand disposed of as allowed. Rule is made absolute to
the aforesaid extent in both these revision applications.
Direct service is permitted.
(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA
