Gujarat High Court

Sushilaben Hargovandas Rathod vs State Of Gujarat on 8 March, 2022

Bench: B.N. Karia

     R/CR.RA/1178/2019                             ORDER DATED: 08/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 1178 of 2019

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                     SUSHILABEN HARGOVANDAS RATHOD
                                  Versus
                            STATE OF GUJARAT
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Appearance:
for the Applicant(s) No. 1
WARIS A ALVI(8353) for the Applicant(s) No. 1
MR. AAMIR S PATHAN(7142) 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 : 08/03/2022

                              ORAL ORDER

1. Learned advocate Mr. Aamir S. Pathan 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 relief:

"YOUR LORDSHIPS may be pleased to call for record and proceedings of Criminal Case No.886 of 2016 from the court of learned Chief Metropolitan Magistrate, Ahmedabad, and further be pleased to quash and set aside judgment and order dated 06.08.2018 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.886 of 2016 as well as judgment and order dated 26.08.2019 passed by the learned City Civil and Sessions Court, Ahmedabad in Criminal Appeal No.505 of 2018 and further be pleased to acquit the applicant."

3. Heard learned advocates appearing for the respective parties

R/CR.RA/1178/2019 ORDER DATED: 08/03/2022

and learned APP appearing for the respondent-State.

4. 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. 3,50,000/-.

Learned advocate for the respondent no.2 has produced affidavit

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

that he has received amount of Rs. 3,50,000/- 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.

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

respondent No.2, respondent No.2- Pareshbhai Mafatlal Rathod was

appeared before this Court and has confirmed that dispute is

amicably settled with the present applicant voluntarily. He further

submits that he has no grievance against the present applicant. 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. I say and submit that the aforesaid Criminal Case No.886 of 2016 under Section 138 of the Negotiable Instrument Act

R/CR.RA/1178/2019 ORDER DATED: 08/03/2022

resulted into Conviction for a period of One Year Simple Imprisonment for the Petitioner herein and Compensation of Rs.5,00,000/- came to be ordered under Section 357 of the Code of Criminal Procedure on 06.08.2018. Further, the pettioner herein preferred Criminal Apeaal No.505/2018 before the Ld. City Civil & Sessions Judge, Ahmedabad wherein, an amount of Rs.50,000/- came to be deposited by the petitioner herein. Further the said Criminal Appeal No.505/2018 came to be dismissed on 26.08.2019 and thereafter, the present petitioner came to be sent behind the bars since 03.11.2021.

3. It is respectfully submitted that dispute between the parties have been amicably settled and therefore as of now there is no ill-will or grievance between the parties. Further, it is submitted that the complainant's family and the petitioner's family herein happens to be known each other since long & therefore, the matter is amicably resolved with the intervention of family members and elderly people of society. Moreover, the Cheque amount is of Rs.5,00,000/- against which, the dispute has been settled for an amount of Rs.3,50,000/- and therefore, it is submitted that no useful purpose would be served with the continuation of the criminal proceedings and therefore also, the case of present petitioner requires consideration.

4. I say and submit that deponent herein & Petitioner know each other since long and further, arrangements have already been made amongst the parties to clear the said amount of Rs.3,50,000/- wherein already 50,000/- has been deposited in Trial Court and Rs.1,85,000/- paid to me by case on date: 19.01.2022 further, cheque of remaining amount of Rs.1,15,000/- has been given which will be cleared by the son of the Petitioner on dated: 01.03.2022 and thereforer, no dispute remains now. Further, it is humbly submitted that since the parties have decided to bury the grievance, the deponent herein and other family members of the deponent have no objection for grant of bail of the Petitioner and therefore also, the case of present petitioners requires consideration.

6. Learned advocate for the respondent no.2 has identified the

respondent no.2 as well as his signature in his affidavit.

Respondent no.2 has stated before this Court that compromise

has been arrived at with the applicant and the respondent no.2 has

R/CR.RA/1178/2019 ORDER DATED: 08/03/2022

no objection if the impugned orders are quashed by the Court.

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.3,50,000/- 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 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

R/CR.RA/1178/2019 ORDER DATED: 08/03/2022

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 06.08.2018 passed by the

learned Additional Chief Metropolitan Magistrate, Ahmedabad in

Criminal Case No.886 of 2016 as well as judgment and order dated

26.08.2019 passed by learned City Civil and Sessions Court,

Ahmedabad in Criminal Appeal No.505 of 2018 stand quashed and

set aside. The applicant-accused is acquitted of the charge under