Bhupatbhai Ashabhai Jadeja vs Mustufamiya Mohammadmiya Malek
2023 Latest Caselaw 5902 Guj

                                                                                    NEUTRAL CITATION




     R/CR.RA/1322/2022                                ORDER DATED: 11/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL REVISION APPLICATION NO. 1322 of 2022
                             With
 CRIMINAL MISC.APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
                   OF AMOUNT) NO. 1 of 2023
      In R/CRIMINAL REVISION APPLICATION NO. 1322 of 2022
                             With
       R/CRIMINAL REVISION APPLICATION NO. 1324 of 2022
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                       BHUPATBHAI ASHABHAI JADEJA
                                 Versus
                    MUSTUFAMIYA MOHAMMADMIYA MALEK
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Appearance:
S B SUTARIA(7651) for the Applicant(s) No. 1
MR AMIT P SOLIYA(10780) for the Respondent(s) No. 1
MR.JAY S SHAH(7244) for the Respondent(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 11/08/2023

                          COMMON ORAL ORDER

1. Challenge is given to the concurrent findings

of conviction and sentence under Section 138

of the Negotiable Instruments Act, 1881.

2. Criminal Revision Application no.1322/22 is

filed against the judgment and order dated

3.10.2022 passed by the learned 3rd

Additional District and Sessions Judge,

Ahmedabad Rural in Criminal Appeal no.70 of

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R/CR.RA/1322/2022 ORDER DATED: 11/08/2023

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2021 where the sentence was partially

enhanced by the learned Appellate Court.

While Criminal Revision Application

no.1324/22 is filed against Criminal Appeal

no.71/21 filed by the accused challenging the

judgment and order of conviction and sentence

passed under Section 138 of the Negotiable

Instruments Act, 1881 by the learned

Additional Chief Judicial Magistrate,

Ahmedabad Rural and both the Appellate

Court's order have been challenged by the

accused.

3. Learned advocate for the applicant submitted

that during the pendency of the proceedings,

parties have settled the disputes amicably

outside the Court, and that there remains no

grievance between them.

4. Respondent-original complainant - Mustufamiya

Mohammadmiya Malek is present before the

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R/CR.RA/1322/2022 ORDER DATED: 11/08/2023

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Court and is identified by learned advocate

Mr. Amit Soliya. Mr. Soliya seeks permission

to file Vakalatnama. Registry to accept the

same. The learned advocate for the original

complainant states that the complainant has

received the entire amount as agreed between

the parties and the complainant does not want

to pursue the matter now in view of amicable

settlement and has given consent for

compounding the offence. The complainant also

filed an affidavit to that effect.

5. Since the entire amount has been received by

the complainant and the complainant has given

consent for compounding the offence, keeping

in mind the object of Section 147 of the NI

Act, which is an enabling provision which

provides for compounding the offence and may

require the consent of the aggrieved for

compounding the offence, however, the

specific provision under Section 147,

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R/CR.RA/1322/2022 ORDER DATED: 11/08/2023

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inserted by way of amendment towards special

law, would give overriding effect to sub-

section (1) of Section 320 Criminal Procedure

Code, 1973 (CrPC) as has been observed in the

case of Damodar S. Prabhu v. Sayed Baba Lal,

AIR 2010 SC 1907. Accordingly, as the dispute

has been resolved and the entire amount has

been paid to the complainant, in consonance

with the object of the NI Act and the

provisions under Section 147 thereof, the

matters are considered as compounded.

6. In aforesaid view of the matter, the judgment

and order passed by the learned Trial Court

of conviction and sentence for the offence

punishable under Section 138 of the NI Act,

as affirmed by the learned Appellate Court,

are quashed and set aside. The applicant

stands acquitted.

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R/CR.RA/1322/2022 ORDER DATED: 11/08/2023

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7. The amount which is deposited before this

Court and the Sessions Court in the sum of

Rs.5,00,000/- and Rs.1,00,000/- be paid to

the complainant on verification of the

identity.

8. Accordingly, the present applications stand

disposed of in the above terms. Connected

applications, if any, also stand disposed of.

Direct service is permitted.

(GITA GOPI,J) Maulik