Gujarat High Court
Riteshbhai Karsanbhai Rabari vs State Of Gujarat on 13 September, 2021
Bench: Umesh A. Trivedi
R/CR.RA/563/2020 ORDER DATED: 13/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 563 of 2020
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING)
NO. 2 of 2021
In R/CRIMINAL REVISION APPLICATION NO. 563 of 2020
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RITESHBHAI KARSANBHAI RABARI
Versus
STATE OF GUJARAT
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Appearance:
ADITYA R PARIKH(8769) for the Applicant(s) No. 1
MR KULDIP K ACHARYA(10616) 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 : 13/09/2021
ORAL ORDER
Order in Criminal Revision Application No.563 of 2020
1. Shri Kuldip Acharya, learned advocate has instructions to appear
for respondent no.2. Shri Kuldip Acharya, learned advocate seeks
permission to file his Vakalatnama for respondent no.2. Registry is
directed to accept the Vakalatnama on behalf of respondent no.2.
2. RULE. Ms.Jirga Jhaveri , learned Additional Public Prosecutor,
waives service of notice of rule on behalf of respondent no.1 - State and
Shri Kuldip Acharya, learned advocate, waives service of notice of rule
on behalf of respondent no.2.
3. This Revision Application is directed against an order passed by
the learned 4th Additional Chief Judicial Magistrate, Anand dated
R/CR.RA/563/2020 ORDER DATED: 13/09/2021
20.12.2018 in Criminal Case No.1440 of 2018 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 two years Simple Imprisonment. Over and above that,
Rs.12,36,000/-, being the cheque amount, was ordered to be paid to the
complainant as compensation and in default of payment of compensation,
he is ordered to further undergo four months Simple Imprisonment. The
said judgment of conviction and order of sentence was carried in Appeal
being Criminal Appeal No. 25 of 2019, which also came to be dismissed
by the learned 4th Additional Sessions Judge, Anand vide order dated
15.02.2020. Both these orders are under challenge in this Revision
Application.
4. During pendency of this application, the parties have settled the
disputes outside the Court. The compromise deed 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. The affidavit is taken on record.
5. However, in view of compounding arrived at between the parties
and when the matter is settled between them, pursuant to which the
amount as agreed between the parties is already paid to the complainant,
as disclosed in the affidavit as also an amount of Rs. 50,000/- which has
been deposited by the present applicant before the Appellate Court
R/CR.RA/563/2020 ORDER DATED: 13/09/2021
pursuant to an order passed by the Appellate Court is also permitted to be
withdrawn by Respondent No.2 herein - Complainant - Rajendrabhai
Harmanbhai Patel. The Appellate Court is directed to refund the said
amount deposited by the applicant - Riteshbhai Karsanbhai Rabari on
verification of the deposit as also the identity of the Complainant. In
view of the above, 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 4th Additional Chief
Judicial Magistrate, Anand dated 20.12.2018 in Criminal Case No.1440
of 2018 confirmed by the learned 4 th Additional Sessions Judge, Anand
vide order dated 15.02.2020 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 levelled against
him. Though compounding under Section 147 of the "the Act" is made
permissible, 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 accused is required to pay cost to be deposited with Gujarat
State Legal Services Authority. However, considering the fact that
despite an order passed by this Court to suspend the sentence to release
the applicant on bail on deposit of the amount as ordered by this Court
vide order dated 15.10.2020 despite the order, he could not deposit the
amount as ordered by the Court and, therefore, he is still in judicial
custody, therefore, in view of paragraph 17 of the aforesaid reported
R/CR.RA/563/2020 ORDER DATED: 13/09/2021
decision, a discretion is vested with the Court with regard to specific facts
and circumstances of a case to reduce or waive the same. Considering the
aforesaid fact, no cost is to be recovered from the present applicant.
7. Accordingly, the present Criminal Revision Application shall stand
disposed of as allowed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Order in Criminal Misc. Application NO. 2 of 2021
In view of disposal of Revision Application, this application being
2/2021 stands disposed of.
(UMESH A. TRIVEDI, J)
NAIR SMITA V.
