Gujarat High Court
Janakkumar Ramabhai Patel vs State Of Gujarat on 22 December, 2022
Bench: Umesh A. Trivedi
R/CR.RA/631/2019 ORDER DATED: 22/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 631 of 2019
With
CRIMINAL MISC.APPLICATION (FOR
WITHDRAWAL/DISBURSEMENT OF AMOUNT) NO. 1 of
2022
In
R/CRIMINAL REVISION APPLICATION NO. 631 of 2019
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JANAKKUMAR RAMABHAI PATEL
Versus
STATE OF GUJARAT
======================================
Appearance:
MITTAL N PATEL(7614) for the Petitioner(s) No. 1
MR RAJESH K SHAH(784) for the Respondent(s) No. 2
MS ASMITA PATEL, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 22/12/2022
ORAL ORDER
[1.0] RULE. Ms. Asmita Patel, learned Additional Public
Prosecutor, waives service of notice of rule on behalf of
respondent no.1 - State and Shri Rajesh Shah, learned
advocate, waives service of notice of rule on behalf of
respondent no.2.
[2.0] This Criminal Revision Application is directed
against an order passed by the learned 3 rd Additional Judicial
Magistrate First Class, Kadi dated 10.04.2018 in Criminal Case
No.121 of 2016 convicting the petitioner for an offence
R/CR.RA/631/2019 ORDER DATED: 22/12/2022
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the Act') and ordered him
to undergo 1 year Simple Imprisonment. Over and above that,
he was ordered to pay Rs.6,08,750/- within a period of 60 days
towards compensation failing which he is ordered to undergo 2
months Simple Imprisonment. The said judgment of conviction
and order of sentence was carried in Appeal, being Criminal
Appeal No.67 of 2018, which also came to be dismissed by the
learned 5th Additional Sessions Judge, Mehsana vide order
dated 03.06.2019. Both these orders are under challenge in
this Criminal Revision Application.
[3.0] During pendency of this application, the parties
have settled the dispute outside the Court. The petitioner -
accused - Janakkumar Ramabhai Patel as also the complainant
- Patel Maheshbhai Vinodbhai, partner and manager of Naman
Bio Fuel has filed an affidavit affirmed on 22.12.2022 stating
therein that the matter is settled between the parties and
pursuant to the settlement, if the amount deposited before this
Court as also before the Sessions Court by the petitioner -
accused is permitted to be withdrawn by the respondent no.2 -
complainant, to which learned advocate for the petitioner has
no objection, respondent no.2 - complainant does not wish to
proceed further with the Revision Application and they have
requested the Court that compounding entered into between
the parties be accepted and the Revision Application be
accordingly allowed. At the same time, it is stated in the
compromise deed that if the judgment of conviction and order
of sentence passed against the petitioner - accused is quashed
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and set aside, he has no objection for the same. The affidavit is
taken on record.
[4.0] However, in view of compounding arrived at
between the parties and when the matter is settled between
them, pursuant to which the cheque amount is already paid to
the complainant, as disclosed in the affidavit, 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
learned 3rd Additional Judicial Magistrate First Class, Kadi dated
10.04.2018 in Criminal Case No.121 of 2016 confirmed by the
learned 5th Additional Sessions Judge, Mehsana in Criminal
Appeal No.67 of 2018 dated 03.06.2019 are hereby quashed
and set aside.
[5.0] In view of sub-section (8) of Section 320 of the
Code of Criminal Procedure, 1973, the petitioner is acquitted of
the charge levelled against him. Since the compounding
between the parties is arrived at revisional stage before this
Court, the petitioner 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. However, in view of paragraph 17 of the said
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judgment, discretion is granted to the Competent Court to
reduce the cost for the reasons to be assigned. As such, what
is pleaded orally before the Court, without any
contemporaneous record that he is a farmer having very small
piece of land having liability of two unmarried sisters, unable
to earn much and has recently divorced with the wife has
drained him out of financial stability.
[6.0] Ms. Mittal Patel, learned advocate for the petitioner
- accused, submitted that reasonable amount of cost be
awarded and he be given sufficient time to pay the same.
Considering the aforesaid reasons, the petitioner - accused is
directed to deposit Rs.30,000/- towards cost with the Gujarat
State Legal Services Authority within a period of 45 days
hereof, as asked by the learned advocate for the petitioner in
presence of the petitioner himself. If the petitioner 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. Registry is hereby directed to issue final writ of
this revision application after ascertaining that the aforesaid
cost amount is deposited by the petitioner.
[7.0] However, an amount of Rs.1,25,000/-, which is
deposited before the Sessions Court, Mehsana and
Rs.1,60,000/-, which is deposited with the Registry of this
Court, is required to be given to the respondent no.2 -
complainant as per the terms of settlement, to which the
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petitioner - accused, who is personally present before the
Court has no objection, and therefore, Registry of this Court is
directed to give an amount of Rs.1,60,000/- to respondent no.2
- complainant through cheque or any other electronic mode
after ascertaining the identity and the Sessions Court,
Mehsana is also directed to give an amount of Rs.1,25,000/-,
which is deposited by the petitioner before it at the time of
hearing of the Appeal through cheque or any other electronic
mode after ascertaining the identity of the respondent no.2 -
complainant.
[8.0] Accordingly, the present Criminal Revision
Application stands disposed of as allowed. Rule is made
absolute to the aforesaid extent.
ORDER IN CRIMINAL MISC.APPLICATION NO. 1 of 2022
Since the order of withdrawal of the amount is
passed in main Revision Application, no order in the application
and the same stands disposed of.
(UMESH A. TRIVEDI, J.)
siji
