Gujarat High Court
Hemant Ashok Kumar Gupta vs State Of Gujarat on 8 February, 2022
Bench: Vipul M. Pancholi
R/CR.MA/1335/2022 ORDER DATED: 08/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 1335 of 2022
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HEMANT ASHOK KUMAR GUPTA
Versus
STATE OF GUJARAT
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Appearance:
MR AKSHAY V MATANI(11363) for the Applicant(s) No. 1
MS SHABNAM A ALVI(12195) 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 : 08/02/2022
ORAL ORDER
1. Draft Amendment is allowed. Necessary amendment
be carried out, forthwith.
2. Rule. Learned APP Mr.L.B. Dabhi waives service
of notice of Rule for respondent No.1 State and
learned advocate Ms.Shabnam Alvi waives service of
notice of Rule for respondent No.2.
2. This application is filed under Section 482 of
the Code of Criminal Procedure, 1973 ("the Code" for
short) for quashing and setting aside the judgment
and order of conviction dated 18.02.2021 passed by
learned 6th Additional Chief Judicial Magistrate,
Gandhinagar, in Criminal Case No.1419 of 2019.
3. Heard learned advocate Mr.Akshay V. Matani for
the applicant, learned advocate Ms.Shabnam Alvi for
respondent No.2 - complainant and learned Additional
Public Prosecutor Mr.L.B. Dabhi for respondent No.1 -
R/CR.MA/1335/2022 ORDER DATED: 08/02/2022
State.
4. Learned advocate for the applicant submitted
that the complaint under Section 138 of the
Negotiable Instruments Act, 1881 ("N.I. Act" for
short) had been filed by respondent No.2 -
complainant against the present applicant. It is
further submitted that after conclusion of the trial,
the concerned trial Court vide the impugned judgment
and order dated 18.02.2021 convicted the present
applicant for the offence punishable under Section
138 of the N.I. Act. Copy of the said order is placed
on record at Page-10 of the compilation. At this
stage, it is submitted that now, the dispute is
amicably settled with respondent No.2 - complainant
and, therefore, the complainant has filed an
affidavit before this Court, copy of which is placed
on record at Page-35 of the compilation. It is stated
in the affidavit that the dispute is amicably settled
between the parties and, therefore, if the impugned
order of conviction is quashed and set aside, the
complainant has no objection.
4.1 Learned advocate for the parties pointed out
from the record that on 04.02.2022, the complainant
was present in the office of learned advocate Ms.Alvi
and he had confirmed that the dispute is settled with
the applicant - accused.
4.2 Learned advocate for the applicant has placed
reliance upon the decision rendered by the Hon'ble
R/CR.MA/1335/2022 ORDER DATED: 08/02/2022
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.
4.3 At this state, learned advocate for the
applicant further submitted that the applicant is
ready and willing to deposit the required amount of
Gujarat State Legal Services Authority.
5. 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 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 respondent No.2 has filed
an affidavit stating that if the order of conviction
passed against the applicant is quashed and set
aside, the respondent no.2 has no objection.
6. 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
R/CR.MA/1335/2022 ORDER DATED: 08/02/2022
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
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."
7. In the case of Damodar S. Prabhu Vs. Sayed
babalal H. (supra), the Hon'ble 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
R/CR.MA/1335/2022 ORDER DATED: 08/02/2022
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
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."
8. 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. Accordingly, the application is allowed.
The impugned judgment and order of conviction dated
18.02.2021 passed by the learned 6th Additional Chief
Judicial Magistrate, Gandhiangar, in Criminal Case
No.1419 of 2019 and all the other consequential
proceedings arising out of the said judgment are
R/CR.MA/1335/2022 ORDER DATED: 08/02/2022
quashed and set aside. Rule is made absolute,
accordingly.
9. However, at this stage, it is required to be
noted that respondent No.2 filed a complaint under
Section 138 of the N.I. Act for dishonour of the
cheque amounting to Rs.5,00,000/-. Therefore, as per
the decision rendered by the Hon'ble Supreme Court,
the applicant is required to deposit 15% of the
amount of the cheque with the Gujarat State Legal
Services Authority. Thus, the applicant is directed
to deposit Rs.75,000/- within a period of four weeks
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.
Direct Service is permitted.
(VIPUL M. PANCHOLI, J)
piyush
