Goswami Bhavik Mukeshkumar vs State Of Gujarat
2022 Latest Caselaw 3762 Guj

     R/CR.RA/304/2022                             IA ORDER DATED: 30/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


         CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022
          In R/CRIMINAL REVISION APPLICATION NO. 304 of 2022
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GOSWAMI BHAVIK MUKESHKUMAR Versus STATE OF GUJARAT ========================================================== Appearance:

MR.JAY S SHAH(7244) for the PETITIONER(s) No. MR GAURAV VYAS(9855) for the RESPONDENT(s) No. 2

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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 30/03/2022

IA ORDER IN CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022 In R/CRIMINAL REVISION APPLICATION NO. 304 of 2022

1. Rule returnable forthwith. Learned advocate Mr. Gaurav Vyas waives service of notice of rule for and on behalf of the respondent no.2 and learned APP waives service of notice of rule for and on behalf of the respondent no.1.

2. By way of present application, the applicant has requested to take the settlement on record and compound the offence by quashing and setting aside the judgment and order dated 09.03.2022 passed below Ex. 19 in Criminal Appeal No. 56 of 2021 by learned 4th Additional Sessions Judge, Mahesana as well as judgment and order dated 05.02.2021 passed below Ex. 39 in Criminal Case No. 8078 of 2017 by learned 6 th

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Additional Chief Judicial Magistrate, Mahesana and acquit the applicant.

3. 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.

4. On a request being made by learned advocate for the respondent no.2, respondent no.2 was permitted to present before this court and while remaining present before this court, he has submitted that the dispute has been settled and he 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.

5. Learned advocate for the respondent no.2 also submits that the dispute has been settled between the parties and respondent no.2 has no objection if the orders passed by the courts below would be quashed and set aside. Learned advocate for the respondent no.2 has identified the signature of the respondent no.2 in the affidavit.

6. Learned APP for the respondent State has submitted that while recording evidence produced on record, learned both the courts below have awarded sentence upon the applicant and thus, present application is required to be dismissed and ultimately, she has requested to dismiss present application.

7. Having considered the facts of the case and submissions

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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 for the same, the applicant has paid the settlement amount to the respondent no.2 and respondent no.2 has no objection if the impugned orders are quashed.

8. The relevant paragraphs of the affidavit filed by the respondent no.2 on 23.03.2022 are as under:

1. That | am the original complainant of the Criminal Case No.8078 of 2017 whereby the present applicant had been convicted by the 6th Additional Chief Judicial Magistrate, Mahesana dated 05.02.2021. Thereafter, the present applicant had preferred Criminal Appeal No.56 of 2021 before the 4'* Additional Sessions Judge, Mahesana whereby the present applicant came be convicted by the Ld. Sessions Court on 09.03.2022 and confirmed the order dated 05.02.2021 of Criminal Case No. 8078 of 2017.

2. Thereafter, the present applicant has preferred the present Criminal Revision Application No.304 of 2022 before this Hon'ble Court against the order dated 09.03.2022 passed in Criminal Appeal No.56 of 2021.

3. That the Present applicant have served the copy of the present Criminal Misc. Application in advance therefore I have gone through all the facts and circumstances of the present

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application and the Criminal Revision.

4. It is stated that pending the captioned Criminal Revision Application, we have settled the dispute amicably by free will and consent and the present applicant has paid the settlement amount. That the settlement entered into between myself and the applicant is in Gujarati and it has been annexed with the captioned Criminal Misc. Application.

5. It is stated that as the settlement has arrived at, now there is no dispute between myself and the present applicant, I hereby give my free consent without any pressure or coercion to quash and set aside the conviction order and to compound the offence by acquitting the present applicant from the conviction order dated 09.03.2022 passed in Criminal Appeal No.56 of 2021 by the 4" Additional Sessions Judge, Mahesana whereby the 4 th Additional Sessions Judge, Mahesana has confirmed the order dated 05.02.2021 passed in Criminal Case No.8078 of 2017 by the 6th Additional Chief Judicial Magistrate, Mahesana."

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

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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."

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 and respondent no.2 has received settlement amount and thus, respondent no.2 has also issued receipt. It also appears that on the basis of the settlement arrived at the parties, the respondent no.2 has no objection if the impugned orders may be quashed. Thus, I am of the opinion that present application is required to be allowed and the parties be permitted to compound the offence.

11. In the result, present revision application is allowed. The

R/CR.RA/304/2022 IA ORDER DATED: 30/03/2022

the j judgment and order dated 09.03.2022 passed below Ex. 19 in Criminal Appeal No. 56 of 2021 by learned 4 th Additional Sessions Judge, Mahesana as well as judgment and order dated 05.02.2021 passed below Ex. 39 in Criminal Case No. 8078 of 2017 by learned 6th Additional Chief Judicial Magistrate, Mahesana stand quashed and set aside. The applicant-accused is 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)

ORAL ORDER IN R/CRIMINAL REVISION APPLICATION NO. 304 of 2022

In view of the order passed by this court in Criminal Misc. Application (Direction) No. 1 of 2022 In R/Criminal Revision Application No. 304 of 2022, present revision application does not survive and accordingly, stands disposed of. Rule stands discharged.

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