Gujarat High Court

Yogeshkumar Gaurishankar Joshi vs State Of Gujarat on 14 February, 2022

Bench: B.N. Karia

     R/CR.RA/73/2022                             ORDER DATED: 14/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 73 of 2022

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                   YOGESHKUMAR GAURISHANKAR JOSHI
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR. NILAY A THAKER(7275) for the Applicant(s) No. 1
MR K S CHANDRANI(6674) for the Respondent(s) No. 2
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 14/02/2022

                              ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of

notice of rule for and on behalf of respondent-State and learned

advocate Mr. K.S. Chandrani waives service of notice of rule for and

on behalf of respondent No.2.

2. By way of present application, applicant has prayed for

following reliefs:

"(A) This Hon'ble Court may be pleased to admit and allow this revision application.

(B) This Hon'ble Court may kindly be pleased to call for the Records and Proceedings of Criminal Case No.1130 of 2013 from the Court of Learned Additional Judicial Magistrate First Class, Khedbhrama.

(C) This Hon'ble Court may kindly be pleased to quash and set aside the Judgmetn and Order at Exh- 28 dated 02.01.2020, passed by Learned 3rd Additional Sessions Judge Sabarkantha at Idar in

R/CR.RA/73/2022 ORDER DATED: 14/02/2022

Criminal Appeal No.47 of 15 confirming the Judgement and Order passed by the Learned Additional Judicial Magistrate First Class, Khedbhrama in Criminal Case No.1130 of 2013 and further be pleased to acquit the applicant/accused. (D) That during the pendency and till the final disposal of present application, this Hon'ble Court may kindly be pleased to stay the implementation execution and operation of the Order impugned dated 02.01.2020 passed in Cr.A. No.47 of 15 and further be pleased to enlarge the Applicant on bail. (E) This Hon'ble Court may be pleased to dispense with the filing of this application on affidavit as the applicant is in judicial custody."

3. Brief facts of the present case may be summarized as under:

The complainant/respondent No.2 filed a complaint against the

applicant/original accused stating that, the complainant and the

applicant has family relationships and because of the said

relationship they used to have financial transaction. As the applicant

was in need of money, the complainant had landed him

Rs.1,50,000/- and to repay the said amount, the applicant has issued

a cheque dated 28.05.2013 bearing cheque No.912655 drawn on

Dena Bank, Lakshimipura Brach, Sabarkantha and had assured that

the cheque would be received by the complainant as soon as the

cheque is presented in the bank, the complainant therefore relying on

the statement of the applicant accepted the cheque and deposited the

same in his bank account and the same came to be dishonored and

R/CR.RA/73/2022 ORDER DATED: 14/02/2022

returned with an endorsement of "Fund Insufficient" on 29.05.2013

and therefore, the complainant on 10/06/2013 issued a legal notice to

the accused through his advocate, and as the accused has not repaid

the amount as mentioned in the cheque, the complainant had filed

the complaint against the accused under Section 138 of the N.I. Act

before the learned Chief Judicial Magistrate, and the same came to

be registered as Criminal Case No.1130 of 2013. That in pursuant to

the aforesaid complaint, learned Additional Judicial Magistrate First

Class was pleased to issue process against the accused for the

offence punishable under Section 138 of the N.I. Act and thereafter

the plea of the accused came to be recorded under Section 251 of the

Code of Criminal Procedure, 1973. That after appreciating the

deposition of witnesses, relying upon the documentary evidences

and after hearing the arguments of both the parties, learned

Additional Judicial Magistrate First Class, Khedbhrama was pleased

to convict the accused by judgment and order dated 18.10.2015

passed in Criminal Case No. 1130 of 2013 at Exh.50. Being

aggrieved and dissatisfied with the impugned judgment and order

dated 18.10.2015 passed by the learned Additional Judicial

Magistrate First Class, Khedbhrama in Criminal Case No. 1130 of

R/CR.RA/73/2022 ORDER DATED: 14/02/2022

2013 preferred an appeal under Section 374 of the Cr.P.C., 1973

before the learned District and Sessions Court, Sabarkantha at Idar

and the same came to be numbered as Criminal Appeal No.47 of

2015, alongwith the application for suspension of sentence awarded

by the trial court, the application for suspension of sentence came to

be allowed by the learned Judge, that after considering the evidence

and materials on record and the submissions made by the parties,

learned 3rd Additional Sessions Judge, Sabarkantha at Idar by an

order dated 02.01.2020 was pleased to reject the same confirming

the order passed by learned Additional Judicial Magistrate First

Class, Khedbhrama. Thus, being aggrieved with the said order, the

applicant has preferred present application.

4. Heard learned advocates appearing for the respective parties

and learned APP appearing for the respondent-State.

5. Today, when the matter was taken up for hearing, a joint

request was made by learned advocates for the respective parties that

dispute between the parties is settled amicably. That, dispute was

settled by the complainant by accepting amount of Rs. 1,50, 000/-.

Learned advocate for the respondent no.2 has produced affidavit

filed by the respondent no.2, wherein the respondent no.2 has stated

R/CR.RA/73/2022 ORDER DATED: 14/02/2022

that he has received amount of Rs. 1,50,000/- as full and final

settlement and he has no objection if the orders passed by the courts

below would be quashed and set aside. An Affidavit filed by the

respondent no.2 is taken on record.

6. On a request being made by learned advocate for the

respondent No.2, respondent No.2- Chintanbhai R. Joshi was

permitted to appear before this Court through video conferencing.

He has confirmed that dispute is amicably settled with the present

applicant voluntarily. He has filed his affidavit under his signature

and admitted the contents averred in the affidavit are correct and true

and contents of the affidavit filed by the respondent No.2 are

reproduced as under:

"2. At the outset, I submit that I am filing this affidavit in support of the present Revision Application as I don't have any objection if the application preferred by the petitioner is allowed. I say and submit that after the Order dated 02/02/2020 the dispute between us has been amicably settled. I further state that the dispute between us was pertaining to the Cheque Amount and same had been received by me and therefore I have no objection if the petition preferred by the petitioner is allowed and the Order dated 02/02/2020, passed by the Learned 3 rd Additional Sessions Judge Sabarkantha at Idar and Order passed by the Learned Additional Judicial Magistrate First Class, Khedbrahma in Criminal Case No.1130 of 2013 is quashed and set aside.

3. I further submit that I and the petitioner are known to each other and therefore with the intervention of common friend and elder members of the society the dispute between us is settled with an intention to have long friendly

R/CR.RA/73/2022 ORDER DATED: 14/02/2022

relationship further and therefore I have no objection if the petition is allowed and Order Order dated 02/02/2020, passed by the Learned 3rd Additional Sessions Judge Sabarkantha at Idar and Order passed by the Learned Additional Judicial Magistrae First Class, Khedbrahma in Criminal Case No.1130 of 2013 is quashed and set aside."

7. Learned APP for the respondent State has requested to pass

necessary order in this matter.

8. Having considered the facts of the case and submissions made

by learned advocates for the respective parties as well as learned

APP for the respondent-State and considering the facts of the

affidavit filed by the respondent no.2, it appears that the dispute is

settled amicably between the parties and respondent no.2-original

complainant has received amount of Rs.1,50,000/- from the accused-

applicant as full and final settlement and no other amount remains

due from the applicant.

9. The Apex Court in the case of Vinay Devanna Nayak V/s

Ryot Seva Sahakari Bank Ltd. reported in AIR 2008 SC 716 has

observed as under in paras 17 and 18 of the judgment :

"17. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd. V. Indian Technologists and Engineers, (1996) 2 SCC 739, the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operation and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the party of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a

R/CR.RA/73/2022 ORDER DATED: 14/02/2022

view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of banking operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realized this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002)".

18. Taking into consideration even the said provision (Section

147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We therefore dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent."

10. Applying the ratio of the aforesaid decision of the Apex Court

to the facts of the present case as well as considering the settlement

arrived at between the parties, I am of the opinion that the revision

application is required to be allowed and the parties be permitted to

compound the offence.

11. In the result, the revision application is allowed. The

impugned judgment and order dated 02.01.2020 passed by learned

3rd Additional Sessions Judge, Sabarkantha at Idar in Criminal

Appeal No.47 of 2015 as well as judgment and order dated

28.10.2015 passed by learned Additional Judicial Magistrate First

Class, Khedbhrama in Criminal Case No.1130 of 2013 stand

quashed and set aside. The applicant-accused is acquitted of the