Gujarat High Court
Nishantbhai Mukeshbhai Shah vs State Of Gujarat on 1 February, 2022
Bench: Vipul M. Pancholi
R/SCR.A/697/2022 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 697 of 2022
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NISHANTBHAI MUKESHBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Applicant(s) No. 1
MS LAXA BHAVNANI for the Respondent(s) No. 2
MR LB DABHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 01/02/2022
ORAL ORDER
1. With the consent of learned advocates appearing
for the parties, present application is taken up
for final disposal today.
2. Learned advocate Ms. Laxa Bhavnani states that she
has received instructions to appear on behalf of
respondent No.2. She is permitted to file her
Vakalatnama in the Registry. Registry to accept
the same.
3. Rule. Learned APP Mr. L.B. Dabhi for respondent
no.1 and learned advocate, Ms. Laxa Bhavnani for
respondent no.2 waive service of notice of Rule.
4. By way of the present application under Section
482 of the Code of Criminal Procedure, 1973 (for
short, the 'Code'), the applicant prays for
quashing and setting aside the judgment and order
dated 05.01.2022 passed by the learned Chief
Judicial Magistrate, Morbi in Criminal Case
No.4724 of 2019, by which, the present applicant -
accused has been convicted for the offence
R/SCR.A/697/2022 ORDER DATED: 01/02/2022
punishable under Section 138 of the Negotiable
Instruments Act, 1881 and sentenced to suffer
simple imprisonment for a period of one year and
also directed him to pay double compensation,
failing which, to undergo 90 days simple
imprisonment.
5. Heard learned advocate, Mr. Aftabhusen Ansari for
the applicant, learned APP Mr. L.B. Dabhi for
respondent no.1 and learned advocate, Ms. Laxa
Bhavnani for respondent No.2.
6. At this state, learned advocate for the applicant
submitted that now the dispute is amicably settled
with respondent No.2 - complainant. Learned
advocate for the applicant has also referred the
affidavit of the complainant filed before this
Court, a copy of which is placed on record at Page
No.27 of the compilation. It is, therefore, urged
that the impugned judgment be quashed and set
aside on the ground of settlement arrived at
between the parties.
7. Learned advocate for the applicant has placed
reliance upon the decision rendered by the
Honourable Supreme Court in the case of Damodar S.
Prabhu Vs. Sayed Babalal H. reported in (2010) 5
SCC 663 and the order dated 06.05.2021 passed by
this Court in Criminal Misc. Application No.18712
of 2020 (Khokhar Iliyas Bismilla Khan Vs. State of
Gujarat & Anr.). Having relied on the said
decisions, learned advocate for the applicant
urged that compounding of offence is permissible
even after the conviction under Section 138 of the
N.I. Act on certain conditions.
R/SCR.A/697/2022 ORDER DATED: 01/02/2022
8. On the other hand, learned advocate Ms. Laxa
Bhavnani also submitted that a settlement is
arrived at between the parties and the complainant
is also present in her office. When inquired, he
has stated that if the impugned judgment is
quashed and set aside, he has no objection.
Learned advocate Ms. Bhavnani has identified him
and confirmed the factor of settlement between the
parties.
9. Having heard learned advocates appearing for the
parties and having gone through the material
placed on record, it has emerged that the
applicant has been convicted by the concerned
Criminal Court for the offence punishable under
Section 138 of the N.I. Act. However, now, the
parties have amicably settled the dispute and,
therefore, the complainant has filed an affidavit
stating that if the order of conviction passed
against the applicant is quashed and set aside, he
has no objection.
10. This Court, in the case of Khokhar Iliyas Bismilla
Khan Vs. State of Gujarat & Anr. (supra), had an
occasion to deal with a similar issue which is
involved in the present matter. The observations
made in Paragraphs-16 and 16.2 of the said
decision are as under:
"16. Applying the ratio of various decisions by
this Court and the Apex Court as well as in view
of the guidelines as laid down in the case of
Damodar S. Prabhu (Supra) as also considering
the object of Section 138 of the NI Act, which
is mainly to inculcate faith in the efficacy of
banking operations and credibility of
R/SCR.A/697/2022 ORDER DATED: 01/02/2022
transacting business through cheque as also
taking into account the provisions of Section
147 which states that every offence punishable
under this Act shall be compoundable. Further,
it is mainly a transaction between the private
parties where the State is not affected.
16.1 xxx xxx xxx
16.2. Generally the powers available under
Section 482 of the Code would not have been
exercised when a statutory remedy under the law
is available, however considering the peculiar
set of facts and circumstances it would not be
in the interest of justice to relegate the
parties to appellate court. Additionally when
both the parties have invoked the jurisdiction
of this Court and there is no bar on exercise of
powers and the inherent powers of this court can
always be invoked for imparting justice and
bringing a quietus to the issue between the
parties and hence, the present application is
entertained."
11. In the case of Damodar S. Prabhu Vs. Sayed Babalal
H. (supra), the Honourable Supreme Court has
issued guidelines in Para-21, relevant portion of
which, reads as under:
"The Guidelines:- (i) In the circumstances, it
is proposed as follows:
(a) That directions can be given that the Writ
of Summons be suitably modified making it clear
to the accused that he could make an application
for compounding of the offences at the first or
second hearing of the case and that if such an
application is made, compounding may be allowed
by the court without imposing any costs on the
accused.
(b) If the accused does not make an application
for compounding as aforesaid, then if an
application for compounding is made before the
R/SCR.A/697/2022 ORDER DATED: 01/02/2022
Magistrate at a subsequent stage, compounding
can be allowed subject to the condition that the
accused will be required to pay 10% of the
cheque amount to be deposited as a condition for
compounding with the Legal Services Authority,
or such authority as the Court deems fit.
(c) Similarly, if the application for
compounding is made before the Sessions Court or
a High Court in revision or appeal, such
compounding may be allowed on the condition that
the accused pays 15% of the cheque amount by way
of costs.
(d) Finally, if the application for compounding
is made before the Supreme Court, the figure
would increase to 20% of the cheque amount."
12. Keeping in view of the aforesaid decision rendered
by the Hon'ble Supreme Court and the order passed
by this Court, I am of the view that when the
parties have settled the dispute amicably,
compounding of the offence is required to be
permitted. However at this stage, it is required
to be noted that the respondent no.1 has filed a
complaint under Section 138 of the N.I. Act for
dishonour of cheque amounting to Rs.17,53,846/-
and, hence as per the decision rendered by the
Hon'ble Supreme Court, as the cheque amount is
huge, suitable amount is required to be deposited
by the applicant with the Gujarat State Legal
Services Authority, more particularly when the
complainant has shown willingness to accept amount
by way of settlement.
13. Accordingly, the petition is allowed. The impugned
judgment and order of conviction dated 05.01.2022
passed by the learned Chief Judicial Magistrate,
Morbi in Criminal Case No.4724 of 2019 is quashed
R/SCR.A/697/2022 ORDER DATED: 01/02/2022
and set aside. The petitioner is permitted to
deposit 10% of Rs.17,53,846/- within a period of
four months from the date of receipt of a copy of
this order with the Gujarat State Legal Services
Authority. On production of receipt of the
deposited amount as directed, the present order
will be given an effect.
14. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(VIPUL M. PANCHOLI, J.)
Gautam
