Natwarbhai @ Nandubhai Dayabhai ... vs State Of Gujarat
2022 Latest Caselaw 9876 Guj

    R/CR.MA/20117/2022                          JUDGMENT DATED: 08/12/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION NO. 20117 of 2022
                           In
    R/CRIMINAL REVISION APPLICATION NO. 1199 of 2022
                          With
    R/CRIMINAL REVISION APPLICATION NO. 1199 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair
      copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation of the
      Constitution of India or any order made
      thereunder ?

======================================
        NATWARBHAI @ NANDUBHAI DAYABHAI PATEL
                          Versus
                     STATE OF GUJARAT
======================================
Appearance:
SUNILSINH J CHAUHAN(8334) for the Petitioner(s) No. 1
MR NARENDRA CHAUHAN(5464) for the Respondent(s) No. 2
MR UTKARSH SHARMA, ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
======================================

CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI



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   R/CR.MA/20117/2022                                   JUDGMENT DATED: 08/12/2022




                           Date : 08/12/2022

                            ORAL JUDGMENT

ORDER IN CRIMINAL MISC. APPLICATION NO.20117 of

Considering the explanation offered in the application as also consent given by the learned advocate for respondent no.2, this application praying for condonation of 142 days delay caused in preferring the Revision Application is hereby condoned.

With this, the present application is allowed. Rule is made absolute accordingly.

ORDER IN CRIMINAL REVISION APPLICATION NO. 1199 of

[1.0] Mr. Narendra Chauhan, learned advocate has instructions to appear for respondent no.2. Mr. Narendra Chauhan, learned advocate seeks permission to file his Vakalatnama or appearance note for respondent no.2. Registry is directed to accept the Vakalatnama or appearance note on behalf of respondent no.2.

[2.0] RULE. Mr. Utkarsh Sharma, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent no.1 - State and Mr. Narendra Chauhan, learned advocate, waives service of notice of rule on behalf of respondent no.2.

R/CR.MA/20117/2022 JUDGMENT DATED: 08/12/2022

[3.0] This Criminal Revision Application is directed against an order passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act Court No.31, Ahmedabad dated 30.11.2018 in Criminal Miscellaneous Application No.290 of 2016 convicting the petitioner for an offence 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 and to deposit Rs.5,00,000/- towards fine and in default of payment of fine he is further ordered to undergo 3 months Simple Imprisonment and after deposit of the amount of fine by the petitioner, Rs.4,90,000/- is ordered to be given to the original complainant - respondent no.2. The said judgment of conviction and order of sentence was carried in Appeal, being Criminal Appeal No. 707 of 2018, which also came to be dismissed by the learned Additional Sessions Judge, Court No.30, City Sessions Court, Ahmedabad vide 23.12.2021. Both these orders are under challenge in this Criminal Revision Application.

[4.0] Mr. Narendra Chauhan, learned advocate, who is appearing for Chandrakant Kantilal Soni, who is also present before the Court, is duly identified by the learned advocate appearing for him. He has placed on record one agreement entered into between respondent no.2 and the son of the petitioner showing that the matter is settled between the parties and as full and final settlement Rs.2 lakhs is agreed to be paid on the terms mentioned in the agreement deed. The

R/CR.MA/20117/2022 JUDGMENT DATED: 08/12/2022

affidavit is taken on record. Learned advocates for the appearing parties and respondent no.2 - complainant , who is present in the Court, submitted that they will abide by the conditions mentioned in it. It is further submitted that on the settlement arrived at between the parties, respondent no.2 - complainant, has no objection if the judgment of conviction and order of sentence passed against the petitioner - accused is set aside.

[5.0] 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 Additional Chief Metropolitan Magistrate, Negotiable Instrument Act Court No.31, Ahmedabad dated 30.11.2018 in Criminal Miscellaneous Application No.290 of 2016 confirmed by the learned Additional Sessions Judge, Court No.30, City Sessions Court, Ahmedabad dated 23.12.2021 in Criminal Appeal No. 707 of 2018 are hereby quashed and set aside.

R/CR.MA/20117/2022 JUDGMENT DATED: 08/12/2022

[6.0] 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 (2010) 5 SCC 663. The petitioner is required to deposit 15% of the cheque amount towards cost but considering the fact that because of financial crises, after the conviction, he had to remain in jail since March, 2022, the complainant has also agreed to accept Rs.2 lakhs towards full and final settlement as against the cheque of Rs.3,80,000/-. Thus, in view of the discretion given to the Court, as referred to in paragraph 25 of the aforesaid decision, it is deemed fit if cost of Rs.5000/- is imposed upon the petitioner - accused to be deposited with the Gujarat State Legal Services Authority within a period of four weeks from today.

[7.0] Mr. Sunilsinh Chauhan, learned advocate for the petitioner, submitted that out of the cheque amount, 10% of the amount was deposited before the appellate Court. The said amount is required to be returned to the petitioner - accused, to which respondent no.2 - original complainant has no objection, and therefore, the appellate Court is directed to refund the same to the petitioner - accused, if deposited by him or on behalf of him, through an account payee cheque after ascertaining identity. Since the petitioner - accused is in jail, he is directed to be released forthwith, if not required in

R/CR.MA/20117/2022 JUDGMENT DATED: 08/12/2022

any other case. If the petitioner fails to deposit the cost 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.

[8.0] Accordingly, the present Criminal Revision Application shall stand disposed of as allowed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(UMESH A. TRIVEDI, J.)

siji