Umesh Jashvantlal Mehta vs Bharatbhai Nathabhai Gelani
2022 Latest Caselaw 141 Guj

     R/CR.MA/23113/2021                             ORDER DATED: 05/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 23113 of 2021

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                           UMESH JASHVANTLAL MEHTA
                                     Versus
                          BHARATBHAI NATHABHAI GELANI
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Appearance:
MR NAUMAN S QURESHI(10669) for the Applicant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR LB DABHI, APP(2) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                Date : 05/01/2022

                                 ORAL ORDER

1. Rule. Learned Additional Public Prosecutor waives service of notice of Rule for respondent No.2 State and learned advocate Mr.Mahesh Pujara waives service of notice of Rule for respondent No.1. Learned advocate Mr.Pujara is permitted to file vakalatnama in the Registry.

2. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 ("the Code" for short) wherein the applicant has prayed that the judgment and order of conviction dated 9.7.2019 passed by learned 11 th Additional Chief Judicial Magistrate, Surat in Criminal Case No.68474 of 2016 and the order dated 7.9.2021 passed in Criminal Appeal No.330 of 2019 by the learned 13th Additional Sessions Judge, Surat and all the other consequential proceedings arising out of the said judgment be quashed and set aside.

R/CR.MA/23113/2021 ORDER DATED: 05/01/2022

3. Heard learned advocate Mr.Shakeel Qureshi for the applicant, learned Additional Public Prosecutor Mr.L.B.Dabhi for respondent No.2 State and learned advocate Mr.Mahesh Purajar for respondent No.1.

3. Learned advocate for the applicant has submitted that respondent No.1 herein has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I. Act" for short) against the applicant for dishonour of cheque amounting to Rs.1,25,00,000/-. It is submitted that the concerned trial Court, vide impugned order dated 9.7.2019, convicted the applicant for the offence under Section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for a period of six months and pay a compensation/penalty of Rs.1,25,20,000/-. The said judgment was carried in appeal which was numbered as Criminal Appeal No.330 of 2019, which was dismissed vide order dated 7.9.2021 by the learned 13 th Additional Sessions Judge, Surat.

3.1 At this state, learned advocate for the applicant submitted that now the dispute is amicably settled with respondent No.1 - complainant and, therefore, a compromise deed was executed between the parties on 8.12.2021, a copy of which is placed on record at Page-53 of the compilation. 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-60. It is, therefore, urged that the impugned judgments be quashed and set aside on the ground of settlement arrived at between the parties.

3.2 Learned advocate for the applicant has placed reliance

R/CR.MA/23113/2021 ORDER DATED: 05/01/2022

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.

3.3. Learned advocate for the applicant submits that the applicant is ready and willing to deposit the required amount with the Gujarat State Legal Services Authority.

4. On the other hand, learned advocate Mr.Mahesh Pujara also confirmed the settlement arrived at between the parties.

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 Criminal Court for the offence punishable under Section 138 of the N.I. Act, which was confirmed by the learned Sessions Court. 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.

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

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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."

7. 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

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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 Honourable 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. dated 9.7.2019 passed by learned 11th Additional Chief Judicial Magistrate, Surat in Criminal Case No.68474 of 2016 and the order dated 7.9.2021 passed in Criminal Appeal No.330 of 2019 by the learned 13th Additional Sessions Judge, Surat and all the other consequential proceedings arising out of the said judgment be quashed and set aside. The applicant be set at liberty, if not required in any other case. Rule is made absolute, accordingly.

9. Respondent No.1 filed a complaint under Section 138 of

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the N.I. Act for dishonour of the cheque amounting to Rs.1,25,00,000/-. Therefore, as per the decision rendered by the Honourable Supreme Court, the applicant is required to deposit 15% of the amount of the cheque with the Gujarat State Legal Services Authority. However, at this stage the observation made by the Hon'ble Supreme Court in the aforesaid decision in paragraph 17 is required to be kept in view, which reads as under:

"xxxxx Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end. xxxxx"

10. Learned advocate for the applicant has submitted that the cheque amount is more than Rs.1 crore and it is difficult for the applicant to deposit 15% amount of the cheque with the Gujarat State Legal Services Authority. It is further submitted that the applicant is in jail since 7.9.2021. It is also pointed out that the age of the applicant is about 60 years and therefore it is prayed that the aforesaid amount be reduced in the interest of justice.

11. Considering the facts and circumstances of the present case and the observation made by the Hon'ble Supreme Court as noted above, the applicant is permitted to deposit 10% of the said cheque amount with the Gujarat State Legal Services Authority, out of which the applicant shall deposit 5% of the said cheque amount within a period of one month and deposit

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the remaining amount of 5% of the said cheque amount within a period of five months thereafter with the Gujarat State Legal Services Authority. Needless to say, the non-compliance of this order may lead to taking appropriate action against the applicant. Direct service is permitted.

(VIPUL M. PANCHOLI, J) SRILATHA