Vaghela Bhojaji Popatji vs Shah Prafulchandra Amrutlal
2021 Latest Caselaw 17116 Guj

      R/CR.RA/786/2021                            ORDER DATED: 29/10/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL REVISION APPLICATION NO. 786 of 2021
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                     VAGHELA BHOJAJI POPATJI
                             Versus
                SHAH PRAFULCHANDRA AMRUTLAL
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Appearance:
MR IMTIYAJ M KURESHI(5301) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS C.M. SHAH APP for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                           Date : 29/10/2021

                             ORAL ORDER

1. Mr. K.I. Kazi, learned advocate has instructions to appear for respondent No.1 - original complainant, Shah Prafulchandra Amrutlal. He is in process of filing his appearance. He assures that he will file his appearance today. Registry is directed to accept the same.

2. RULE. Learned advocate Mr. K.I. Kazi waives service of rule on behalf of respondent No.1. Learned APP Ms. C.M. Shah waives service of rule on behalf of respondent No.2 - State.

3. It is submitted that respondent No.1 - original complainant, who is present before the Court, has affirmed an affidavit dated 22.10.2021, which is placed on record at page 53 of the compilation. According to the affidavit, the matter is settled between the parties and he has received his due amount, as reflected from the affidavit. It is further reflected from the affidavit that due amount is paid and he has no objection, if judgment of conviction and order of sentence is quashed.

R/CR.RA/786/2021 ORDER DATED: 29/10/2021

4. This revision application is filed by the applicant - accused against the order dated 11.10.2021, whereby the learned 5 th Additional Sessions Judge, Mehsana rejected Criminal Misc. Application No.1194 of 2021 praying condonation of delay of 641 days in preferring the appeal against his judgment of conviction and order of sentence dated 18.11.2019 passed by the learned Magistrate in Criminal Case No.607 of 2018. Both the orders are under challenge before this Court.

5. However, since matter is settled between the parties and due amount is paid to respondent No.1 - complainant and in view of the fact that offence under the N.I Act is now made compoundable, it is 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 5 th Additional Chief Judicial Magistrate, Mehsana dated 18.11.2019 rendered in Criminal Case No.607 of 2018, as also order dated 11.10.2021 passed by the learned 5th Additional Sessions Judge, Mehsana in Criminal Misc. Application No.1194 of 2021 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 acquitted of the charge leveled against him.

7. Since the compounding between the parties is arrived at revisional stage before this Court, the 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. The applicant is required to deposit 15% of the cheque amount. However, in view of para 17 of the said judgment, a discretion is granted to the competent Court to reduce the cost

R/CR.RA/786/2021 ORDER DATED: 29/10/2021

amount or waive the same on specific facts and circumstances of a case.

8. Considering the fact that such a small amount of cheque, the applicant - accused could not deposit or repay, he is in custody. Therefore, I deem it fit to impose cost of Rs.10,000/-, which is to be deposited before the Gujarat State Legal Services Authority within a period of four weeks from today. 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.

9. Registry is hereby directed to issue final writ of this revision application after ascertaining that the aforesaid cost amount is deposited by the applicant.

Accordingly, the present criminal revision application shall stand disposed of as allowed. Direct service today is permitted.

(UMESH A. TRIVEDI, J) Raj S. Dhobi