Gujarat High Court
Manojkumar Pannalal Shah vs State Of Gujarat on 22 September, 2021
Bench: Umesh A. Trivedi
R/CR.RA/426/2021 ORDER DATED: 22/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 426 of 2021
With
R/CRIMINAL REVISION APPLICATION NO. 429 of 2021
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MANOJKUMAR PANNALAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
RUPAAL V DAVE(8391) for the Applicant(s) No. 1
MR. SURAJ A SHUKLA(7185) for the Respondent(s) No. 2
MS.JIRGA JHAVERI, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 22/09/2021
COMMON ORAL ORDER
[1.0.] RULE in both the Criminal Revision
Applications. Learned APP waives service of notice of
rule for and on behalf of respondent No.1- State of
Gujarat as well as learned advocate Mr. Suraj Shukla,
waives service of notice of rule for and on behalf of
respondent No.2 - original complainant in both the
applications.
[2.0.] Mr. Suraj Sukla, learned advocate for
the original complainant has submitted that matters
are settled between the parties and he has tendered
Memorandum of Understanding-cum-Deed of Settlement
arrived at between the parties. The said copy is
taken on record.
R/CR.RA/426/2021 ORDER DATED: 22/09/2021
[3.0.] The brief facts of the Criminal
Revision Application No.426 are as under:
[3.1.] The Revision Application is directed
against the judgment of conviction and order of
sentence dated 31.08.2019 passed by the learned 5th
Additional Chief Judicial Magistrate, Surat in
Criminal Case No.50316 of 2014 convicting the
applicant-accused for an offence under Section 138 of
the Negotiable Instruments Act, 1881 (hereinafter
referred to as the 'the Act') and directed him to
undergo simple imprisonment of 1 year as also to pay
double amount of returned cheque as fine, and in
default of payment of fine, he is ordered to undergo
further 03 months of simple imprisonment. The said
order has been confirmed by the 13th Additional
Sessions Judge, Surat, vide judgment and order dated
25.02.2021 rendered in Criminal Appeal No.441 of
2019. Both these orders are under challenge in this
Revision Application.
[4.0.] The brief facts of Criminal Revision
Application No.429 of 2021 are as under:
[4.1.] The Revision Application is directed
against the judgment of conviction and order of
sentence dated 31.08.2019 passed by the learned 5th
Additional Chief Judicial Magistrate, Surat in
Criminal Case No.68178 of 2015 convicting the
applicant-accused for an offence under Section 138 of
'the Act' and directed him to undergo simple
imprisonment of 1 year as also to pay double amount
R/CR.RA/426/2021 ORDER DATED: 22/09/2021
of returned cheque as fine, and in default of payment
of fine, he is ordered to undergo further 03 months
of simple imprisonment. The said order has been
confirmed by the 13th Additional Sessions Judge,
Surat, vide judgment and order dated 25.02.2021
rendered in Criminal Appeal No.442 of 2019. Both
these orders are also under challenge in this
Revision Application.
[5.0.] Since the matters are settled between
the parties and in view of Section 147 of 'the Act',
and the offence is made compoundable, the settlement
arrived at between the parties is required to be
encouraged. In view of the settlement deed executed
between the parties and signed by both the parties,
respondent No.2-original complainant has agreed to
accept the amount as stated in it. It is further
stated therein that respondent No.2-original
complainant is not interested in sending the
applicant in jail and he has no objection if the
judgment of conviction and order of sentence imposed
upon the applicant is quashed and set aside. In view
of the settlement arrived at between the parties,
judgment of conviction and order of sentence dated
31.08.2019 passed by the learned 5th Additional Chief
Judicial Magistrate, Surat in Criminal Case No.50316
of 2014, which has been confirmed vide judgment and
order dated 25.02.2021 passed by the learned 13 th
Additional Sessions Judge, Surat, in Criminal Appeal
No.441 of 2019, which has given rise to Criminal
Revision Application No.426 of 2021, are hereby
R/CR.RA/426/2021 ORDER DATED: 22/09/2021
quashed and set aside. In view of the settlement
arrived at between the parties, judgment of
conviction and order of sentence dated 31.08.2019
passed by the learned 5th Additional Chief Judicial
Magistrate, Surat in Criminal Case No.68178 of 2015,
which has been confirmed vide judgment and order
dated 25.02.2021 passed by the learned 13th Additional
Sessions Judge, Surat, in Criminal Appeal No.442 of
2019, which has given rise to Criminal Revision
Application No.429 of 2021, are also hereby quashed
and set aside. Hence, both these applications are
allowed by setting aside the judgment of conviction
and order of sentence.
[6.0.] In view of sub- Section (8) of Section
320 of the Code of Criminal Procedure, 1973, the
applicant is hereby acquitted from all the charges
levelled against him.
[7.0.] It is submitted that the applicant -
accused has deposited an amount of Rs.5,40,000/-
before the trial Court in these cases. As per the
terms of settlement, the applicant - accused has
agreed that the said amount if paid to the original
complainant, he has no objection. Therefore, the
trial Court is directed to refund the said amount to
the original complainant after ascertaining proper
identity, through A/c payee cheque.
[8.0.] Though compounding under Section 147 of
'the Act' is made permissible, in view of judgment of
the Hon'ble Supreme Court in the case of Damodar S.
R/CR.RA/426/2021 ORDER DATED: 22/09/2021
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 at the
rate of 15% of cheque amount. However, in view of
para-17 of the said judgment, discretion is granted
to the Competent Court to reduce the cost on specific
facts and circumstances of a case.
[9.0.] Considering the fact that as against
the cheque amount of Rs.27,00,000/-, the original
complainant has agreed to accept an amount of
Rs.11,00,000/- taking into account the condition of
the applicant - accused, in view of para-17 of
aforesaid reported decision, imposition of cost by
the Court is a matter of discretion taking into
account the peculiar facts of this case, a token
amount of Rs.10,000/-, as cost, is imposed upon the
applicant - accused, which is to be deposited before
the Gujarat State Legal Services Authority within a
period of one week 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.
[10.0.] Registry is hereby directed to issue
final writ of these Criminal Revision Applications
after ascertaining that the aforesaid cost amount is
deposited by the applicant.
R/CR.RA/426/2021 ORDER DATED: 22/09/2021
[11.0.] Accordingly, the applications stand
disposed of as allowed. Rule is made absolute to the
above extent in both the applications. Direct service
is permitted.
(UMESH A. TRIVEDI, J)
Lalji Desai
