Abdul Razak Hussainbhai Hala vs State Of Gujarat
2022 Latest Caselaw 1729 Guj

     R/SCR.A/959/2022                                     ORDER DATED: 15/02/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/SPECIAL CRIMINAL APPLICATION NO.                      959 of 2022

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              ABDUL RAZAK HUSSAINBHAI HALA
                         Versus
                    STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR KISHAN RATHOD for the Respondent(s) No. 2
MR RB RAVAL APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                            Date : 15/02/2022
                                  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 Mr.Kishan Rathod states that he has received instructions to appear on behalf of respondent No.2. He is permitted to file his Vakalatnama in the Registry. Registry to accept the same.

3. Rule. Learned APP Mr. Ronak Raval for respondent no.1 and learned advocate, Mr. Kishan Rathod for respondent no.2 waive service of notice of Rule.

4. By way of the present petitioner under Article 226 of the Constitution of India read with the provision of the Code of Criminal Procedure, 1973, the petitioner prays for quashing and setting aside the judgment and order dated 24.12.2021 passed by the learned Judicial Magistrate, First Class, Junagadh in Criminal Case No.2765 of 2016, by which, the present applicant - accused has been

R/SCR.A/959/2022 ORDER DATED: 15/02/2022

convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

5. Heard learned advocate, Mr. A.M. Dagli for the applicant, learned APP Mr. Ronak Raval for respondent no.1 - State of Gujarat and learned advocate, Mr. Kishan Rathod for the respondent no.2. I have also heard the respondent no.2 through Video Conferencing, who is present in the office of learned advocate, Mr. Kishan Rathod.

6. Learned advocate for the petitioner submitted that the present respondent no.2 filed complaint under Section 138 of the Negotiable Instrument Act before the concerned JMFC, Junagadh against the present petitioner and the concerned trial court, after conclusion of the trial, convicted the present petitioner for the offences punishable under Section 138 of the Negotiable Instrument Act, copy of said order is placed on record at Page No.16 of the compilation.

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.

8. Learned advocate for the petitioner submits that

R/SCR.A/959/2022 ORDER DATED: 15/02/2022

the petitioner is ready and willing to deposit the required amount with the Gujarat State Legal Services Authority.

9. On the other hand, learned advocate Mr.Kishan Rathod also submitted that now the dispute is amicably settled with the respondent no.2 and the petitioner has paid the outstanding amount to the respondent no.2, for which, the concerned authorized officer of the respondent no.2 - bank has filed an affidavit before this Court, copy of which is placed on record at Page No.76 of the compilation, wherein it is stated that if the impugned order of conviction is set aside, the complainant has no objection. Learned advocate, Kishan Rathod has identified the respondent no.2 and confirmed the factor of settlement between the parties.

10. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the petitioner 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 parties have executed settlement agreement/ declaration as stated above stating that if the order of conviction passed against the petitioner is quashed and set aside, the respondent no.2 has no objection.

11. 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

R/SCR.A/959/2022 ORDER DATED: 15/02/2022

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 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."

12. 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:

R/SCR.A/959/2022 ORDER DATED: 15/02/2022

(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 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."

13. 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 as per the decision rendered by the Hon'ble Supreme Court, suitable amount is

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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 as ordered by the learned trial court by way of settlement.

14. Accordingly, the application is allowed. The impugned judgment and order dated 24.12.2021 passed by the learned Judicial Magistrate, First Class, Junagadh in Criminal Case No.2765 of 2016 is quashed and set aside. The applicant is permitted to deposit Rs.7,500/- 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.

15. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(VIPUL M. PANCHOLI, J.) Gautam