Patel Kanubhai Kachrabhai vs State Of Gujarat
2022 Latest Caselaw 7733 Guj

     R/CR.RA/1424/2019                               ORDER DATED: 08/09/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL REVISION APPLICATION NO. 1424 of 2019

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                 PATEL KANUBHAI KACHRABHAI
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. DARSHIT H SHAH(9894) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 08/09/2022

                              ORAL ORDER

1. Learned advocate Mr. H. N. Shah states at bar that he has instructions

to appear on behalf of the respondent No. 2 - original complainant. He shall

file his Vakalatnama in due course.

2. Learned advocate Mr. Darshit H. Shah for the applicants - original

accused submits the draft amendment. The same is allowed in terms of the

draft. Amendment be carried out accordingly.

3. Rule. Learned advocates for the respective respondents waive

service.

R/CR.RA/1424/2019 ORDER DATED: 08/09/2022

4. This revision application is filed by the applicants - original accused

under Sections 397 and 401 of the Criminal Procedure Code, 1973 (CrPC)

against an order dated 10.10.2019 passed by the learned 2 nd Additional

Sessions Judge, Mahesana in Criminal Appeal No. 127 of 2019, whereby,

the said appeal came to be dismissed for want of prosecution, confirming the

judgment and order dated 12.06.2019 passed in Criminal Case No. 615 of

2014 (Old No.) / 212/2016 (New No.) by the learned Judicial Magistrate

First Class, Vijapur, whereby, the applicants were convicted for the offence

punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI

Act) and sentenced to undergo simple imprisonment for one year. The

applicants were also directed to pay compensation in the sum of

Rs.2,40,000/- to the original complainant - respondent No. 2 herein.

5. The learned advocate for the respondent No. 2 tenders an affidavit on

behalf of the respondent No. 2, which is taken on record. A perusal of the

said affidavit reveals that the respondent No. 2 - original complainant has

entered into settlement with the present applicants and that, the applicants

are paying Rs.1,50,000/- by way of a Demand Draft No. 728820 dated

08.08.2022 issued by the wife of applicant No. 2 in favour of the respondent

No. 2 - original complainant. It is further stated that accordingly, no

amount has remained due to the respondent No. 2. A copy of said demand

R/CR.RA/1424/2019 ORDER DATED: 08/09/2022

draft is also produced along with the said affidavit. It is further averred by

the original complainant in the said affidavit that he has no objection if the

present revision application is allowed as prayed for.

5.1 Original complainant - Sathvara Bhaghabhai Hirabhai, who is present

before the Court and identified by learned advocate Mr. H. N. Shah, affirms

the aforesaid developments and receipt of the aforesaid demand draft.

6. In the aforesaid view of the matter, the learned advocate for the

applicants requests to allow this application by setting aside the impugned

orders.

7. Regard being had to the submissions and considering the affidavit

filed by the respondent No. 2 and in view of Section 147 of the NI Act, the

present revision application deserves consideration. The parties are allowed

to compound the offence. Accordingly, the impugned orders dated

10.10.2019 passed by the learned 2 nd Additional Sessions Judge, Mahesana

in Criminal Appeal No. 127 of 2019 and the judgment and order of

conviction dated 12.06.2019 passed in Criminal Case No. 212/2016 (Old

No. 615 of 2014) by the learned Judicial Magistrate First Class, Vijapur, are

hereby set aside and the applicants are acquitted from the charge under

R/CR.RA/1424/2019 ORDER DATED: 08/09/2022

Section 138 of the NI Act.

7.1 Nonetheless, in view of the decision of the Apex Court in Damodar

S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, the applicants are

directed to pay 15% of the cheque amount by way of costs, to be deposited

before the Gujarat State Legal Services Authority within a period of two

weeks.

7.2 Rule is made absolute accordingly. Direct service is permitted.

[ A. C. Joshi, J. ] hiren /55