Gujarat High Court
Sandipbhai Bhojabhai Rathod vs State Of Gujarat on 30 March, 2022
Bench: B.N. Karia
R/CR.RA/59/2021 ORDER DATED: 30/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 59 of 2021
With
CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 1 of 2021
In R/CRIMINAL REVISION APPLICATION NO. 59 of 2021
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SANDIPBHAI BHOJABHAI RATHOD
Versus
STATE OF GUJARAT
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Appearance:
MR YASH K DAVE(10269) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
CHETANKUMAR V DARJI(9309) 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 : 30/03/2022
ORAL ORDER
In the first sessions, respondent No.2 was permitted to file
fresh affidavit and in this connection, respondent No.2 has filed
fresh affidavit in the second sessions which is taken on record.
1. By way of present Criminal Revision Application, applicant
has challenged the order of conviction dated 28.3.2019 passed in
Criminal Case No. 5339 of 2017 by learned 4 th additional Chief
Judicial Magistrate, Anand convicting the applicant for the offence
punishable under Section 138 of the Negotiable Instruments Act (for
short "N.I.Act") as well as order dated 8.1.2021 passed in Criminal
Appeal No.107 of 2019 by learned Sessions Judge, Anand
wherein, the learned lower appellate Court has been pleased to
R/CR.RA/59/2021 ORDER DATED: 30/03/2022
dismiss the said appeal and confirmed the judgement and order of
conviction and sentence passed by the learned trial Court.
2. On a request being made by learned advocate for the
respondent No.2, respondent No.2- Nayanbhai Babubhai Tailor was
permitted to appear before this Court. He was identified by learned
advocate for the the respondent No.2. He has filed affidavit dated
30th March, 2022. Learned advocate for the respondent No.2 has
identified the signature of the respondent No.2 in the affidavit which
was executed before the Notary on 30.3.2022. Respondent No.2 has
no objection if impugned judgement and orders passed by the Court
below are quashed by this court in view of settlement arrived at
between them. He has confirmed that dispute is amicably settled
with the present applicant voluntarily and the amount deposited by
the present applicant may be disbursed in his favour.
3. The relevant paragraphs of the Affidavit filed by respondent
No.2- Nayanbhai Babubhai Tailor, are as under :-
2. I say and submit that present applicant has made submission
before this Hon'ble Court that entire cheque amount has been deposited
by him before Hon'ble Appellant Court. I further say and submit that, an
amicable settlement has been arrived between the parties and appellant
is ready and willing to give consent for disbursement of amount which
R/CR.RA/59/2021 ORDER DATED: 30/03/2022
was deposited by him before the Hon'ble Appellant Court, in my favour.
I further say and submit that, I am ready to accept the amount deposited
before the Hon'ble Appellant Court and compound the present offence
against the appellant. I further say and submit that, I do not have any
objection if this Hon'ble Court may be pleased to quash and set aside
order of Hon'ble Trial Court and Hon'ble Appellant Court.
3. I say and submit that, I am giving my consent for compounding
of the present case without prejudice to my rights in the pending other
proceedings against the applicant or my future right to initiate legal
proceeding against the present applicant to recover pending due amount.
4 Learned advocates for the respective parties also confirm that
the settlement is arrived at between the parties and stated that the
dispute is amicably settled and nothing requires to be adjudicated on
merits by this Court. Therefore, they have requested this Court to
dispose of this Revision Application by quashing and setting aside
the impugned judgement and orders challenged in the present
revision application.
5. Learned APP has objected the arguments advanced by learned
advocates appearing for the respective parties and submitted that
after considering the evidence of the complainant as well
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documentary evidence, a clear conviction was rightly held by both
the Courts below and requested to pass necessary order.
6. 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 parties. We therefore dispose
of the appeal on the basis of the settlement arrived at between the
appellant and the respondent."
7. Applying the ratio of the aforesaid decision of the Apex Court
to the facts of the present case, I am of the opinion that the revision
application is required to be allowed and the parties be permitted to
compound the offence.
8. Considering the facts of the case, submissions made by learned
advocates appearing for the respective parties, as well as learned
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APP, it appears that the dispute is settled between the parties..
9. In the result, the revision application is allowed. The judgment
and order 28.3.2019 passed in Criminal Case No. 5339 of 2017 by
learned 4th additional Chief Judicial Magistrate, Anand as well as
judgement & order dated 8.1.2021 passed in Criminal Appeal
No.107 of 2019 by learned Sessions Judge, Anand stand quashed
and set aside. The applicant-accused is acquitted of the charge under
Section 138 of the Negotiable Instruments Act except he is not
convicted in connection with any other offence. Bail bond if any
stands cancelled.
10. The amount of Rs.2,50,000/- deposited by the present
applicant before the learned lower Appellate Court shall be
disbursed in favour of the respondent No.2 through account payee
cheque, after due verification.
(B.N. KARIA, J)
ORDER IN CRIMINAL MISC. APPLICATION NO. 1 OF 2021
In view of the order passed in main application i.e. Criminal
Revision Application No.59 of 2021, present application does not
survive and accordingly stands disposed of.
(B.N. KARIA, J)
BEENA SHAH
