Sunvaliya Kaushikbhai ... vs Amitkumar Vipulbhai Solanki
2022 Latest Caselaw 4747 Guj

Citation : 2022 Latest Caselaw 4747 Guj
Judgement Date : 5 May, 2022

Gujarat High Court

Sunvaliya Kaushikbhai ... vs Amitkumar Vipulbhai Solanki on 5 May, 2022

Bench: B.N. Karia

     R/CR.RA/466/2022                          ORDER DATED: 05/05/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 466 of 2022

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                SUNVALIYA KAUSHIKBHAI RAMESHCHANDRA
                                Versus
                    AMITKUMAR VIPULBHAI SOLANKI
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Appearance:
MR JAGDHISH SATAPARA(5524) for the Applicant(s) No. 1
MR HARSHAD R JADAV(11270) for the Respondent(s) No. 1
MR JITENDRA D PATEL(11288) for the Respondent(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                           Date : 05/05/2022

                            ORAL ORDER

1. Rule. Learned advocate Mr.Jitendra D. Patel, waives

service of notice of rule for and on behalf of respondent No.1

and learned APP waives service of notice of rule for and on

behalf of respondent no.2-State.

2. By preferring this application under Section 401 read

with Section 397 of the Code of Criminal Procedure, 1973, the

applicant has prayed to quash and set aside the order dated

31.03.2022 passed below Exh.08 in Criminal Appeal No.10 of

2021 by the learned 2nd Additional Sessions Judge, Viramgam

convicting the present revisionist and further prayed to quash

and set aside the order of the learned Judicial Magistrate First

R/CR.RA/466/2022 ORDER DATED: 05/05/2022

Class, Negotiable Instruments Act, at Viramgam dated

28.07.2021 passed below Exh.29 in Criminal Case No.1387 of

2018.

3. Heard learned advocates for the respective parties and

learned APP for the respondent-State.

4. Joint submissions made made by learned advocates for

the respective parties that the dispute of amount is amicably

settled between the parties. Learned advocate for the

respondent no.1 submits that the respondent no.1 - original

complainant himself is present before this Court and he may

be permitted to appear before this Court. It is submitted that

the dispute is settled between the parties and the respondent

no.1-original complainant has received the full amount of the

cheque i.e. Rs.9 lakhs issued by the present applicant in three

different complaints. Considering the request made by learned

advocate for the respondent no.1, respondent no.1 was

permitted to appear before the Court. He submits that his

name is Amitkumar Vipulkumar Solanki. As per his

statement, he has filed the criminal complaint against the

present applicant under Section 138 of the N.I. Act which was

culminated into Criminal Case No.1387 of 2018 before the

R/CR.RA/466/2022 ORDER DATED: 05/05/2022

learned Judicial Magistrate First Class, at Viramgam. It is

further submitted that against the order of conviction passed

by the Trial Court, Criminal Appeal No.10/2021 was preferred

by the present applicant before the Sessions Court,

Viramnagar and the order of Trial Court was confirmed by the

Appellate Court. It is submitted that now compromise is

arrived with the present applicant voluntarily and he has

accepted the amount of cheque i.e. total amount of Rs.9 lakhs

in three different complaints. He has further submitted that

he has filed his affidavit under his signature dated

05.05.2022. Learned advocate for the respondent no.2

identified the respondent no.1 as Amitkumar Vipulkumar

Solanki, who is present before the Court. He also confirms the

contents of the affidavit filed by the respondent no.1 as well as

his signature.

5. In the affidavit filed by Amitkumar Vipulbhai Solanki-

respondent no.1, he has stated as under:

"1. I have gone through the application filed by the applicant and I say and submit that the petitioner and his family has settled the said matter and the petitioner here in has already paid settlement amount Rs.3,00,000/- in cash dated on 10.04.2022 and remaining amount Rs.6,00,000/- is also paid in cash to me dated

R/CR.RA/466/2022 ORDER DATED: 05/05/2022

04.05.2022.

2. It is submitted that the petitioner here in is convicted under Sec. 138 of N.I. Act in Criminal Case No.1388/2018 before the court of the Ld. Judicial Magistrate first class court Negotiable Instruments Act, at Viramgam and the appellant of Criminal Appeal No.11/2021 before the Court of the Ld. 2 nd Additional Sessions Judge, Viramgam. It is also submitted that Ld. 2nd Add. Sessions Judge has confirmed the sentence given by the trial court.

3. I say that due to interference and persuading by our relatives, I have decided to compromise with the applicant and therefore I have compromised with the petitioner, and neither I have been threatened nor enticed by any person including the accused for compromise.

And therefore, I have no objection if this Hon'ble Court may set aside the conviction the judgment and order of the conviction dated 31/03/2022 passed in Criminal Appeal No.11 of 2021 by the 2 nd Additional Sessions Court, Viramgam which is against the conviction order dated 28/07/2021 passed in Criminal Case No.1388 of 2018 by the Ld. Judicial Magistrate first class court, at Viramgam under Section 138 of N.I. Act."

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

R/CR.RA/466/2022 ORDER DATED: 05/05/2022

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 as well as considering

the settlement arrived at between the parties and contents of

the affidavit filed by the respondent no.2, I am of the opinion

R/CR.RA/466/2022 ORDER DATED: 05/05/2022

that the revision application is required to be allowed and the

parties be permitted to compound the offence.

8. Considering the fact that the dispute is settled between

the parties and affidavit is also filed by the respondent no.1

accepting that the amount of Rs.9 lakhs is received by him

from the present applicant and no dispute remains with the

present applicant, prayer requires consideration.