Babubhai Banubhai Dodiya vs State Of Gujarat
2023 Latest Caselaw 3284 Guj

      R/SCR.A/3658/2023                                      ORDER DATED: 25/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 3658 of 2023

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                               BABUBHAI BANUBHAI DODIYA
                                         Versus
                                   STATE OF GUJARAT
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Appearance:
MR. VANRAJSINH M DAMORE(3787) for the Applicant(s) No. 1
SIDDHARTH Y KASHYAP(8001) for the Applicant(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
MR HARDIK GAJJAR for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                      Date : 25/04/2023
                                       ORAL ORDER

1. Mr. Hardik Gajjar, learned advocate states that he has received instructions to appear for and on behalf of the respondent no.2 and sought permission to appear on behalf of the respondent no.2. Permission as sought for stands granted. He shall file his Vakalatnama before the Registry. Registry shall accept the same.

2. By way of present application, the applicant has requested to quash and set aside the judgment and order dated 21.07.2022 passed by learned Principal Civil Judge and Judicial Magistrate First Class, Upelta, District Rajkot in Criminal Case No.9 of 2019 for the offence punishable under Section 138 of the Negotiable Instruments Act as

R/SCR.A/3658/2023 ORDER DATED: 25/04/2023

compromise has been arrived at between the parties.

3. Considering the issue involved in the present application and with consent of the learned advocates appearing for the respective parties as well as considering the fact that the dispute amongst the applicant and complainant has been resolved amicably, this matter is taken up for final disposal forthwith.

4. Learned counsel for the respective parties submitted that after passing aforesaid order of conviction, as referred to above, the parties have amicably settled their issue by way of mutual settlement and pursuant to understanding arrived at, the Complainant has accordingly filed an affidavit, which is on record. The complainant has categorically stated in the affidavit that dispute is amicably resolved and has no objections if the impugned order is quashed as there is no surviving grievance between them.

5. Having heard the learned counsel for the respective parties, considering the facts and circumstances arising out of the present application as well as taking into consideration the decision rendered in the cases of Vinay Devanna Nayak V/s Ryot Seva Sahakari Bank Ltd. reported in AIR 2008 SC 716, Hon'ble Apex Court,

R/SCR.A/3658/2023 ORDER DATED: 25/04/2023

wherein it is observed 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."

6. 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 that the present application is required to be allowed and the parties be permitted to compound the offence.

7. In the result, present application is allowed. The judgment and order dated 21.07.2022 passed by

R/SCR.A/3658/2023 ORDER DATED: 25/04/2023

learned Principal Civil Judge and Judicial Magistrate First Class, Upleta, District Rajkot in Criminal Case No.9 of 2019 for the offence punishable under Section 138 of the Negotiable Instruments Act stands 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.

(SAMIR J. DAVE,J) MEHUL B. TUVAR