Kesar Impex Thro Ashok Tulsidas ... vs Bhavin Industries Through Sanjay ...
2022 Latest Caselaw 2348 Guj

    R/CR.RA/189/2022                         ORDER DATED: 02/03/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL REVISION APPLICATION NO. 189 of 2022

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       KESAR IMPEX THRO ASHOK TULSIDAS BHANUSHALI
                          Versus
    BHAVIN INDUSTRIES THROUGH SANJAY RATILAL PALSETKAR
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Appearance:
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1,2,3
MR RUSHABH R SHAH(5314) for the Applicant(s) No. 1,2,3
MR UJJWAL R SAREEN FOR MR GAURAV P GOYAL(8861) for the
Respondent(s) No. 1
MS MH BHATT, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                         Date : 02/03/2022

                          ORAL ORDER

Rule returnable forthwith. Learned advocate Mr Ujjwal R. Sareen for Mr. Gaurav P. Goyal, learned advocate waives service of notice of rule for and on behalf of the respondent no.1 and learned APP waives service of notice of rule for and on behalf of the respondent no.2-State.

By way of present application, the applicants have challenged the judgment and order dated 20.01.2022 passed by learned 3rd Additional Sessions Judge, Valsad at Vapi partly allowing Criminal Appeal No. 26 of 2020 filed by the revisionist against the judgment and order of conviction dated 18.03.2016 passed by the learned Judicial Magistrate, Vapi in Criminal Case No. 2034 of 2014 convicting the revisionist for

R/CR.RA/189/2022 ORDER DATED: 02/03/2022

the offence punishable under Section 138 of the Negotiable Instruments Act convicting the revisionist for the offence punishable under Section 138 of Negotiable Instrument Act and sentencing the appellant to undergo two years simple imprisonment with compensation of Rs. 5,00,00,000/- in default thereof further SI for six months.

Today, when the matter was taken up for hearing, a joint submission was made by learned advocates for the respective parties that dispute between the parties is settled amicably.

Today, Mr. Sanjay Ratilal Palsetkar, authorized signatory of the Bhavin Industries Partnership firm- respondent no.1 was present before this court and submitted that he is the authorized person of the respondent no.1 and declared that the dispute has been settled with the applicants and the respondent no.1 has no objection if impugned both the orders may be quashed and set aside. He has also filed his affidavit for the same which is taken on record.

Learned advocate for the respondent no.1 also submits that the dispute has been settled between the parties and respondent no.1 has no objection if the orders passed by the courts below would be quashed and set aside. Learned advocate for the respondent no.1 has identified the signature of the respondent no.1 in the affidavit.

Learned APP for the respondent State has requested to

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pass necessary order in this matter.

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.1, it appears that the dispute is settled amicably between the parties in Rs. 1 crore and for the same, the applicant has issued cheque of Rs. 1 crore drawn on Bank of Baroda dated 15.02.2022 in favour of the respondent no.1 for full and final settlement.

The relevant paragraphs of the affidavit filed by the respondent no.1 on 15th February 2022 are as under:

"3. I state and submit that, the issues between the Complainant and the Revisionists have been amicably settled for Rs. 1 Crore and for the same the revisionists has issued a cheque of Rs.1 Crore drawn on Bank of Baroda dated 15/02/2022 in favour of the complainant i.e. Bhavin Industries for full and final settlement and therefore, there is nothing left for either of us to proceed against anyone and therefore, order dated 20/01/2022 passed by the Learned 3" Additional Sessions Judge, Valsad at Vapi, in Criminal Appeal No. 26 of 2020 (Old Criminal Appeal No. 17/2016) and the order dated 18/03/20 16 passed by the Learned Judicial Magistrate, Vapi in Criminal Case No. 2034 of 2014 convicting the Revisionists herein be quashed and set aside in the view 4 of the settlement arrived at. Moreover, the civil suit filed by the respondent herein against the revisionist for recovery the amount in question, being a Commercial Case No. 06/2020 pending before the Civil Judge (Senior Division) of Daman, At Daman will also be withdrawn by the respondent by filing separate affidavit along with the withdrawal pursis on the next date of hearing of the said civil suit, i.e. 22.02.2022. By way of

R/CR.RA/189/2022 ORDER DATED: 02/03/2022

this affidavit, I assure to abide by the above statement of filing of withdrawal pursis cum affidavit for the suit numbered as Commercial Case No. 06/2020 pending before the Civil Judge (S. D.) of Daman, At : Daman.

4. I respectfully submit before this Hon'ble Court that I do not have any objection if the order dated 20.01.2022 passed by the learned 3rd Additional Sessions judge, Valsad at Vapi in Criminal Appeal No. 26 of 2020 (Old Criminal Appeal No. 17/2016) and the order dated 18.03.2016 passed by the learned Judicial Magistrate, Vapi in Criminal Case No. 2034 of 2014 convicting the Revisionists herein, be quashed and set aside with my consent"

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 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

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parties. We therefore dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent."

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.

In the result, present revision application is allowed. The he judgment and order dated 20.01.2022 passed by the learned 3rd Additional Sessions judge, Valsad at Vapi in Criminal Appeal No. 26 of 2020 (Old Criminal Appeal No. 17/2016) and the order dated 18.03.2016 passed by the learned Additional JMFC, Vapi in Criminal Case No. 2034 of 2014 stand quashed and set aside. The applicants-accused are acquitted of the charge under Section 138 of the Negotiable Instruments Act. Bail bonds if any stands cancelled.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) K. S. DARJI