Nirali Kumash Malvia vs State Of Gujarat
2021 Latest Caselaw 13487 Guj

     R/CR.RA/1250/2019                                        ORDER DATED: 06/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 1250 of 2019

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                              NIRALI KUMASH MALVIA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR MA KHARADI(1032) for the Applicant(s) No. 1
MS ZEEL N RAVAL(10774) for the Respondent(s) No. 2
MS CM SHAH, ADDL PUBLIC PROSECUTOR(2) for the Respondent(s) No.1
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                                    Date : 06/09/2021

                                     ORAL ORDER

1. Rule. Ms. C. M. Shah, learned APP waives service of notice of rule on behalf of respondent - State. Ms. Zeel N. Raval, learned advocate waives service of notice of rule on behalf of respondent No.2 - original complainant.

2. This Criminal Revision Application is filed by the applicant - original accused challenging the judgment of conviction and order of sentence passed by the learned Additional Chief Metropolitan Magistrate, Court No.28, Ahmedabad dated 15.04.2019 in Criminal Case No.76213 of 2017 whereby the petitioner is convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and is ordered to undergo simple imprisonment for two years and double the cheque amount is awarded as a fine and out of that cheque amount is to be paid to the complainant as compensation. The said order was challenged by the applicant before the learned Additional

R/CR.RA/1250/2019 ORDER DATED: 06/09/2021

Sessions Judge, City Sessions Court, Ahmedabad by filing Criminal Appeal No.354 of 2019. However, the appeal came to be dismissed because of default in making requisite payment under 'the Act' vide order dated 13.09.2019.

3. Pursuant to an order passed by this Court in the present application, the petitioner has deposited Rs. 5 Lacs before the Court of learned Additional Metropolitan Magistrate, Court No.28, Multi-storied Building, Ahmedabad.

4. During pendency of this application, the parties have settled the dispute out of Court and the first informant, Mr.Jagrut Pradhyot Raval, is present before the Court and is duly identified by Ms.Zeel N. Raval, learned advocate appearing for him. From the affidavit, it appears that the complainant is satisfied with the terms of settlement arrived at between the parties on condition that the amount deposited by the applicant before the trial Court, pursuant to the order passed by this Court, be permitted to be paid to the complainant, to which Mr. Kharadi, learned advocate for the applicant has no objection. If that amount of Rs. 5 lacs deposited before the trial Court is permitted to be withdrawn by the complainant, he is having no objection if the order of punishment imposed upon the petitioner is set aside by this Court.

5. In view of Section 147 of 'the Act', it is a compoundable offence, since parties have settled the dispute inter se and as the complainant agrees to setting aside the punishment imposed, the genuine settlement arrived at between the parties should be encouraged. However, under Section 320 (8) of the

R/CR.RA/1250/2019 ORDER DATED: 06/09/2021

Code of Criminal Procedure, 1973, punishment imposed upon the accused is required to be quashed and set aside.

6. Beneficial reference can be made upon the decision of the Hon'ble Supreme Court in case of Damodar S. Prabhu vs. Sayed Babalal reported in 2010 (5) SCC 663, and in view thereof the applicant is directed to deposit 15% of the cheque amount as cost to State Legal Services Authority within a period 6 weeks from today. If applicant fails to do so, this order stands recalled and he would serve the sentence.

7. In view of above, the judgment of conviction and order of sentence passed by the learned Chief Additional Metropolitan Magistrate, Court No.28, Ahmedabad dated 15.04.2019 in Criminal Case No.76213 of 2017 is hereby quashed and set aside. Respondent No.2 - original complainant is permitted to withdraw the amount deposited by the applicant before the trial Court. Applicant is ordered to be acquitted of all the charges levelled against her in the aforesaid case. The bail bond stands cancelled.

8. With this, the present application stands disposed of as allowed. Rule is made absolute to the aforesaid extent.

(UMESH A. TRIVEDI, J) DRASHTI K. SHUKLA