Rakeshkumar Manilal Aahir vs State Of Gujarat
2022 Latest Caselaw 2594 Guj

      R/SCR.A/1575/2022                                   ORDER DATED: 08/03/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO.                 1575 of 2022

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                           RAKESHKUMAR MANILAL AAHIR
                                     Versus
                                STATE OF GUJARAT
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Appearance:
MR BHAVESH J PATEL(6801) for the Applicant(s) No. 1
 for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                 Date : 08/03/2022

                                      ORAL ORDER

1. Learned advocate Mr. Radesh Vyas has received instructions to appear on behalf of respondent No.2 - original complainant. He is permitted to file his Vakalatnama in the Registry. Registry to accept the same.

2. Rule. Learned APP Mr.Ronak Raval and learned advocate Mr. Radesh Vyas waive service of notice of Rule for respondent no.1 - State and respondent no.2

- original complainant, respectively.

3. With the consent of learned advocates appearing for the parties, present petition is taken up for final disposal today.

4. This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for

R/SCR.A/1575/2022 ORDER DATED: 08/03/2022

quashing and setting aside the order dated 18.12.2021 passed by the learned Chief Judicial Magistrate, Mahisagar at Lunawada in Criminal Case No.1249 of 2019, whereby, the present petitioner has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act ('N.I.Act' for short).

5. Learned advocate for the petitioner submitted that respondent No.2 herein filed Criminal Case No.1249 of 2019 against the present petitioner under Section 138 of the N.I.Act and after conclusion of the trial, the concerned trial court has, vide impugned order dated 18.12.2021, convicted the petitioner for the offence punishable under Section 138 of N.I.Act. However, after the order of conviction is passed, now the complainant has settled the dispute with the present petitioner. Respondent No.2 has, therefore, filed an affidavit before this Court, copy of which is placed on record at page 29.

6. Learned advocate Mr. Vyas for the respondent No.2 submitted that respondent No.2 - complainant is present before this Court. Learned advocate Mr. Vyas has identified him. Complainant has stated that he has settled the dispute with the present petitioner and therefore if the impugned order of conviction passed by the concerned trial Court is quashed and set aside, he has no objection.

7. At this stage, learned advocate for the petitioner has placed reliance upon the decision

R/SCR.A/1575/2022 ORDER DATED: 08/03/2022

rendered by the Hon'ble Supreme Court in the case of Damodar S. Prabhu v. 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 petitioner 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 applicant submits that the applicant is ready and willing to deposit the required amount with the Gujarat State Legal Services Authority.

9. 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.

10. 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

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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."

11. 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

R/SCR.A/1575/2022 ORDER DATED: 08/03/2022

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."

12. In view of the aforesaid discussion, the impugned judgment and order dated 18.12.2021 passed by the learned Chief Judicial Magistrate, Mahisagar at Lunawada in Criminal Case No.1249 of 2019 and all other consequential proceedings arising out of the said judgment and order are quashed and set aside. Rule is made absolute accordingly.

13. As per the decision rendered by the Hon'ble Supreme Court, the petitioner is required to deposit 15% of the amount of the cheque with the Gujarat State Legal Services Authority. Thus, the petitioner is directed to deposit Rs.7400/- within a period of

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four weeks from today 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.

Direct service permitted.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI