Gujarat High Court
Bharat Hargovandas Makwana vs State Of Gujarat on 6 January, 2023
Bench: Umesh A. Trivedi
R/CR.RA/924/2021 ORDER DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 924 of 2021
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BHARAT HARGOVANDAS MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR BHUNESH C RUPERA(3896) for the petitioner(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Respondent(s) No. 2
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 06/01/2023
ORAL ORDER
1. Rule. Mr. Utkarsh Sharma, learned APP waives service of
notice of Rule for and on behalf of respondent - State.
Mr. Kishan Prajapati, learned advocate for respondent No. 2,
waives service of notice of Rule.
2. Mr. Indrajitsinh Kuldeepsinh Bhasin, respondent No. 2
herein - original complainant is present before the Court
through his advocate - Mr. Kishan Prajapati, learned advocate,
who duly identifies him.
3. According to the affidavit filed on behalf of the respondent
No. 2, if cheque amount which is already deposited before this
Court by the petitioner - accused is ordered to be given to him,
R/CR.RA/924/2021 ORDER DATED: 06/01/2023
he has no objection if the judgment of conviction and order of
sentence passed by the trial Court and confirmed by the
appellate Court is quashed and set aside. It is clearly stated
therein that the matter is amicably settled between them and
that complainant is satisfied with the amount determined as
part of settlement. The said affidavit is taken on record.
4. In view of Section 147 of the Negotiable Instruments Act,
1881, when offence is made compoundable, the genuine
compounding entered into between the parties is required to be
encouraged. Considering the affidavit, it is clear that the
compounding is genuine, and therefore, the impugned
judgment of conviction and order of sentence passed by the
learned Additional Chief Metropolitan Magistrate, Court No.28,
Ahmedabad, dated 23.07.2019 in Criminal Case No. 73587 of
2017 and confirmed by the learned Additional Sessions Judge,
City Session Court, Court No. 29, Ahmedabad, by order dated
10.12.2021 in Criminal Appeal No. 575 of 2019 are hereby
quashed and set aside.
5. In view of sub-section (8) of Section 320 of the Code of
Criminal Procedure, 1973, the petitioner is acquitted of the
charge leveled against him.
R/CR.RA/924/2021 ORDER DATED: 06/01/2023
6. Since the compounding between the parties is arrived at
revisional stage before this Court, cost is required to be
imposed upon the petitioner in view of the decision of the
Hon'ble Supreme Court in the case of Damodar S. Prabhu v.
Sayed Babalal, reported in 2010 (5) SCC 663, the petitioner
is required to deposit 15% of the cheque amount. However, in
view of para 25 of the said judgment, a discretion is given to
the Court to reduce the cost amount for the reasons to be
recorded.
7. As submitted by Mr. Bhunesh C. Rupera, learned advocate
for the petitioner - accused, he is doing tailoring work and
because of non-payment of this paltry sum, he has undergone
the agony of trial as also the conviction. In short, submission is
that he is not well-to-do and earning his livelihood from tailoring
work not up to reasonable satisfaction of a family. Therefore, he
has requested that the appropriate cost may be awarded
instead of the cost of 15% of the cheque amount, as
determined in the said decision of the Supreme Court.
8. Considering the submission as also keeping in mind the
prosecution initiated in the year 2017 and that he was
convicted and sentenced by the Court, which was confirmed by
the appellate Court, he has sufficiently undergone the agony of
R/CR.RA/924/2021 ORDER DATED: 06/01/2023
trial as also the appeal and conviction. Hence, the petitioner -
accused is directed to deposit Rs. 7,500/- as cost, instead of
15% of the cheque amount, with the Gujarat State Legal
Services Authority for entering into a settlement at the
revisional stage within a period of four(04) weeks from today.
9. If the petitioner fails to deposit the aforesaid cost amount
within the time prescribed, as aforesaid, the present order shall
stand automatically recalled and he would serve the sentence.
10. Registry is hereby directed to issue final writ of this
revision application after ascertaining that the aforesaid cost
amount is deposited by the petitioner.
11. Registry is hereby directed to give the amount of
Rs. 1,25,000/- deposited in this case by the petitioner - accused
in favor of respondent No. 2 - original complainant - Indrajitsinh
Kuldeepsinh Bhasin, through A/C Payee cheque/electronic mode
after ascertaining the identity.
In view thereof, the present Criminal Revision Application
stands disposed of as allowed. Rule made absolute to the
aforesaid extent. Direct service is permitted.
(UMESH A. TRIVEDI, J.)
Raj
