Gujarat High Court
Hardikbhai Sankalchand Patel ... vs State Of Gujarat on 20 January, 2022
Bench: Vipul M. Pancholi
R/SCR.A/12117/2021 ORDER DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12117 of 2021
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HARDIKBHAI SANKALCHAND PATEL PARTNER OF TENGIBLE
SUPERBIKE
Versus
STATE OF GUJARAT
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Appearance:
MR MB GOHIL(2702) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 20/01/2022
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor waives service
of notice of Rule for respondent No.1 State and learned
advocate Mr.Jagdish Satapara waives service of notice of Rule
for respondent No.2.
2. This application is filed under Sections 226 and 227 of the
Constitution of India, wherein the applicant has prayed that the
judgment and order of conviction dated 24.9.2021passed by
learned Judicial Magistrate First Class, Umreth, in Criminal
Case No.685 of 2018 and all the other consequential
proceedings arising out of the said judgment be quashed and
set aside.
3. Heard learned advocate Mr.Gohil for the petitioner,
learned Additional Public Prosecutor Ms.Mehta for respondent
no.1 State and learned advocate Mr.Satapara for respondent
No.2.
R/SCR.A/12117/2021 ORDER DATED: 20/01/2022
4. Learned advocate for the petitioner submitted that the
present respondent no.2-original complainant had filed
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (`the NI Act' for short) against the present petitioner-
accused. The said complaint was registered as Criminal Case
No.685 of 2018. It is submitted that the concerned trial Court
passed order of conviction dated 24.9.2021 by which the
petitioner is convicted for the aforesaid offences and he was
sentenced to suffer simple imprisonment for a period of two
years. Copy of the said order is placed on record at page no.7.
5. It is submitted that now the dispute is amicably settled
between the parties and therefore the respondent no.2-
complainant has filed affidavit in which it is stated that the
dispute is amicably settled with the present petitioner and
therefore if the impugned order of conviction passed by the
concerned Magistrate Court is quashed and set aside, he has
no objection.
6. Mr.Apurva Patel - respondent no.2-complainant is present
in the office of learned advocate Mr.Arvind Patel. Learned
advocate Mr.Jagdish Satapara has identified him. The
complainant also stated that the dispute is amicably settled
with the present petitioner.
7. At this stage, learned advocate for the petitioner has
placed reliance upon the order dated 6.5.2021 passed by the
coordinate Bench of this Court in similar type of matter being
Criminal Miscellaneous Application No.18712 of 2020 in the
case of Khokhar Iliyas Bismilla Khan Vs. State of Gujarat
& Anr., and thereafter contended that this Court, has after
R/SCR.A/12117/2021 ORDER DATED: 20/01/2022
considering the decision rendered by the Hon'ble Supreme
Court in the case of Damodar S. Prabhu Vs. Sayed babalal
H. reported in (2010) 5 SCC 663, quashed and set aside the
order of conviction on the ground of settlement arrived at
between the parties. Copy of the said order is placed on record
agt page no.103 of the compilation.
8. 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.
9. 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 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.
R/SCR.A/12117/2021 ORDER DATED: 20/01/2022
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."
10. 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 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
R/SCR.A/12117/2021 ORDER DATED: 20/01/2022
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."
11. 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. Impugned
judgment and order of conviction dated 24.9.2021 passed by
learned Judicial Magistrate First Class, Umreth, in Criminal
Case No.685 of 2018 and all the other consequential
proceedings arising out of the said judgment are quashed and
set aside. Rule is made absolute, accordingly.
12. Respondent No.2 filed a complaint under Section 138 of
the N.I. Act for dishonour of the cheque amounting to
Rs.2,25,000/-. In view of the facts and circumstances of the
present case, the applicant is required to deposit 10% of the
amount of the cheque with the Gujarat State Legal Services
Authority. Thus, the applicant is permitted to deposit
Rs.22,500/- 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.
(VIPUL M. PANCHOLI, J)
SRILATHA
