Nasirkhan Yusufkhan Pathan vs State Of Gujarat
2021 Latest Caselaw 13235 Guj

     R/CR.RA/208/2021                               ORDER DATED: 02/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 208 of 2021

==========================================================
               NASIRKHAN YUSUFKHAN PATHAN
                              Versus
                     STATE OF GUJARAT
==========================================================
Appearance:
MR P B KHAMBHOLJA(5730) for the Applicant(s) No. 1
MR PRIANK B ADHYARU(11433) for the Respondent(s) No. 2
MR JK SHAH ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 02/09/2021

ORAL ORDER

1. RULE. Rule is made returnable forthwith. Mr. J.K. Shah, learned Additional Public Prosecutor waives service of rule on behalf of respondent no. 1 and learned advocate Mr. Priank Adhyaru waives service of rule on behalf of respondent no. 2. With the consent of the learned advocates, the matter is taken up for hearing today itself.

2. The present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure is filed for the purpose of challenging the legality and validity of the orders passed by the courts below i.e. order dated 22.02.2021 passed by learned District and Sessions Court, Kheda in Criminal Appeal No. 122 of 2018 as well as order dated 29.10.2018 passed by the learned Judicial Magistrate, First Class, Dakor in Criminal Case No. 460 of 2002.

3. The case in brief is that original complainant i.e. respondent no. 2

R/CR.RA/208/2021 ORDER DATED: 02/09/2021

filed a complaint for the offences punishable under Section 138 of the Negotiable Instrument Act, on the premise, that it was carrying on the business in the name and style of 'Patel Cold Drink' at Dakor. Having good relations with the accused, and prior to ten months from the date of filing of the complaint for the purpose of purchase of video projector, speakers, benches, fans an amount of Rs.60,000/- was given, but the same has not been returned and on demand of the said amount of Rs.60,000/- the applicant - accused issued one cheque bearing Cheque No. 264947 dated 15.03.2002 of Dakor Nagrik Sahkari Bank Limited signed by the applicant-accused. The said cheque when presented, came to be returned on 09.04.2002 with an endorsement 'funds insufficient' and as a result of this, after issuance of legal notice dated 24.04.2002 having not complied with the same by the applicant- accused, a complaint was filed before the learned Judicial Magistrate, First Class, Dakor on 06.06.2002. The plea of the original accused came to be recorded at Exhibit-4 and after adjudication of the trial of the said case, vide order dated 29.10.2018, an order of conviction came to be passed sentencing the applicant - original accused to undergo one year simple imprisonment and was also ordered to pay fine of Rs.5,000/- and in default of amount of compensation, further three months simple imprisonment was ordered and it is this order passed by the learned Judicial Magistrate, First Class, Dakor, an appeal being Criminal Appeal No. 13 of 2013 came to be filed before the learned Principal District and Sessions Judge, Nadiad. The learned Principal Sessions Judge, Nadiad, upon perusal of the appeal found that the dispute had to be proceeded as summons triable case and the contents of the allegation of the complaint or the charge were mentioned and as a result of it was pleased remand the matter back to the trial court to deal with again after framing of proper charge. Accordingly, again the plea of the accused was recorded at Exhibit-49 and thereafter, the original

R/CR.RA/208/2021 ORDER DATED: 02/09/2021

complainant was pleased to pass purshis at Exhibit-51 that he does not want to lead any further evidence and after closure of his evidence, the accused also passed on purshis at Exhibit-55 indicating that no further evidence is to be led by him as well and after the said process having been over, the learned trial Judge was pleased to declare the order on 29.10.2018 and it is against this judgment and order of conviction and sentence, the applicant-accused had preferred Criminal Appeal No. 122 of 2018 which came to be dismissed vide judgment dated 22.02.2021. The ultimate order of conviction, indicates that the present applicant- accused has to undergo sentence of one year simple imprisonment and to pay an amount of Rs.60,000/- by way of compensation and in default, to undergo further simple imprisonment of three months and this order of conviction came to be confirmed by the learned appellate court and as such, feeling aggrieved and dissatisfied with both the aforesaid orders, the present Criminal Revision Application is preferred.

4. Initially when the present Criminal Revision Application is taken up for hearing, at the outset, learned advocate Mr. P.B. Khambholja appearing for the applicant-accused has stated way back in March, 2021 that the matter is settled between the parties and the co-ordinate Bench of this Court was pleased to record statement of learned advocate Mr. Khambholja that the applicant has already paid an amount of Rs.66,000/- and the matter is settled. Necessary affidavit was placed before the court below, but since time to surrender was not extended by the appellate court, this Court on 26.03.2021 was pleased to pass the following order :-

"Learned advocate Mr. Khambholja for the applicant states at bar that the applicant has paid sum of Rs.66,000/- and the matter is settled and necessary affidavit was placed before the learned Appeal Court, but same was not considered and thus, no time to surrender was extended. It appears that the matter is settled

R/CR.RA/208/2021 ORDER DATED: 02/09/2021

between the parties but as the complainant is bedridden on account of medical issue, he is not in a position to appear before the Court as stated by learned advocate Mr. Khambholja for the applicant.

In view of the above, Registry to list the matter on 12.04.2021. Meanwhile, relief in terms of para 7(C) is granted till then."

4.1. The said interim protection thereafter continued from time to time and today, when the matter is taken up for hearing, learned advocates appearing for the respective parties have jointly submitted and confirmed the factum of settlement and requested the Court to dispose of the present criminal revision application. Learned advocate Mr. Khambholja while asserting about the settlement has drawn attention of this Court to an affidavit filed on behalf of respondent no. 2, reflecting on page 40 indicating that the original complainant received the amount from the applicant-accused and does not want to proceed ahead with the criminal revision application. On oath the original complainant has submitted that with the intervention of the elders, socially reputed people, the applicant- accused as well as the original complainant could settled the matter happily and decided to put an end to legal battle which they have been fighting since about decade and has expressed that this settlement is happily arrived at without any threat and coercion in any manner and as such, has submitted that in view of the fact that the original complainant has already received the amount, the present order of conviction and sentence be set aside and the criminal revision application be disposed of.

5. Since the present proceedings are to be disposed of in view of the settlement which has taken place, the Court has refrain itself from examining the merit or demerit of the stand of the either side and having perused the order as well as the affidavit which has been submitted on page 40, request of both the sides to dispose of the present application

R/CR.RA/208/2021 ORDER DATED: 02/09/2021

deserves consideration.

5.1. At this stage, learned advocate Mr. Khambholja has submitted that the amount as per the impugned order is already paid to the original complainant, but as per the mandate of the Hon'ble Supreme Court, 15% amount which is required to be deposited by him to the Gujarat State Legal Services Authority, some reasonable time be given to the applicant and has prayed for three weeks time to deposit the said 15% amount to be deposited by him.

6. To this submission jointly made by the learned advocates appearing for the applicant-accused as well as Mr. Priyank Adhyaru, learned advocate representing the original complainant i.e. respondent no.2 herein, Mr. J. K. Shah, learned Additional Public Prosecutor appearing on behalf of the respondent - State has submitted that since basically this an inter se conflict between the applicant and the original complainant has consumed much of public time and as such, in view of the mandate of Supreme Court, 15% amount deserves to be deposited to the Gujarat State Legal Services Authority and has left it to the discretion of the Court.

7. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, there is a clear assertion on behalf of the original complainant on oath in the form of affidavit that he does not want to prosecute the matter any further and with the intervention of the elderly people and the relatives, the matter is amicably settled and to that effect on oath an affidavit is also filed. Hence, there remains nothing to be proceeded further in the present criminal revision application on merit, especially when the learned

R/CR.RA/208/2021 ORDER DATED: 02/09/2021

advocate under the instructions has submitted that the applicant- accused is ready and willing to deposit 15% of the amount as per the indication given by the Hon'ble the Supreme Court in the case of Damodar S.Prabhu vs Sayed Babalal H. reported in (2010) 5 SCC 663, the Court is inclined to dispose of the present application.

8. The Court at this stage would like to reproduce the relevant extract from the said order passed by the Division Bench of this Court in the case of Shaileshkumar Ishwarbhai Chauhan v. State of Gujarat reported in 2006 JX (Guj) 497 and by taking assistance from it, the Court is inclined to dispose of the present Criminal Revision Application in terms of the settlement and thereby quashed and set aside the impugned orders passed by the courts below. The said relevant extract reads as under :-

"6. This court in the matter of Nitinbhai Mathurdas Thakkar & Others v. State of Gujarat and others, reported in 2005(3) GLR 2377, has quashed the complaint when there was a compromise. The Hon'ble the Apex Court in the matter of State of Karnataka v. L. Muniswamy & others, reported in AIR 1977 SC 1489 has observed in para 7 as under :-

"7. ....... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it come to the conclusion that allowing the proceeding to continue would be an abuse of process of the Court or that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding out to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution........"

9. Accordingly, the present Criminal Revision Application is disposed of in terms of settlement and as a consequence thereof, the impugned orders dated 22.02.2021 and 29.10.2018 are hereby quashed and set aside and the applicant-accused is acquitted in view of the

R/CR.RA/208/2021 ORDER DATED: 02/09/2021

provisions of Section 320(8) of the Code of Criminal Procedure. While disposing of this application, it is directed that the applicant-accused shall deposit 15% amount by cheque to the Gujarat State Legal Services Authority within a period of two weeks from today and to that effect necessary undertaking be filed within a period of five days from today and the same shall be placed on record of the present Criminal Revision Application.

10. With the aforesaid observation and directions, the present Criminal Revision Application stands disposed. Rule is made absolute in terms of the aforesaid settlement.

(ASHUTOSH J. SHASTRI, J) phalguni