Gujarat High Court
Ayushdeep Realty Pvt. Ltd vs State Of Gujarat on 11 January, 2023
Bench: Umesh A. Trivedi
R/CR.RA/417/2022 ORDER DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 417 of 2022
With
R/CRIMINAL REVISION APPLICATION NO. 418 of 2022
With
R/CRIMINAL REVISION APPLICATION NO. 422 of 2022
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AYUSHDEEP REALTY PVT. LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR JM BAROT(143) for the Applicant(s) No. 1,2
MR ANAL S SHAH(3988) for the Respondent(s) No. 2
MS DIVYANGNA JHALA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 11/01/2023
ORAL ORDER
1. Rule returnable forthwith in each of the Revision
Applications. Ms. Divyangna Jhala, learned APP waives service
of rule on behalf of Respondent No.1 -State and Mr. Anal S.
Shah, learned advocate waives service of rule on behalf of
Respondent No.2 in each of the Revision Applications.
2. These Criminal Revision Applications are directed against
order passed by the (1) learned Chief Metropolitan Magistrate,
Ahmedabad in Criminal Case No.617 of 2015 so far as Criminal
Revision Application No.417 of 2022 (2) learned Chief
Metropolitan Magistrate, Ahmedabad in Criminal Case No. 618
of 2015 so far as Criminal Revision Application No.418 of 2022
and (3) learned Chief Metropolitan Magistrate, Ahmedabad in
Criminal Case No. 616 of 2015 so far as Criminal Revision
R/CR.RA/417/2022 ORDER DATED: 11/01/2023
Application No.422 of 2022 are concerned convicting the
petitioner for an offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (herein after referred to as
'the Act') and ordered him to undergo one year simple
imprisonment. Over and above that, cheque amount was
ordered to be paid to the complainant as compensation and in
default of payment of compensation, he is ordered to further
undergo 90 days simple imprisonment. The said judgments of
conviction and order of sentences were carried in Appeal being
(1) Criminal Appeal No.15 of 2019 so far as Criminal Revision
Application No.417 of 2022 (2) Criminal Appeal No.14 of 2019
and so far as Criminal Revision Application No.418 of 2022 and
(3) Criminal Appeal No.13 of 2019 so far as Criminal Revision
Application No.422 of 2022 are concerned, which also came to
be dismissed by the learned Additional Sessions Judge,
Ahmedabad vide order dated 31.3.2022. All these orders are
under challenge in these Criminal Revision Applications.
3. Mr.Ashlesh Upendra Shastri, Respondent No.2, original
complainant is present before the Court duly identified by
Mr.Anal S. Shah, learned advocate representing him. In all
these three Revision Applications, he tendered an affidavit dated
11.1.2023 stating therein that total cheque amount, which
petitioner-accused has deposited either before this Court or
before the lower Court, if it is ordered to be paid to him, he has
no objection if judgments of conviction and order of sentences
passed by the trial Court and confirmed by the appellate Court
are quashed and set aside. The said affidavits are ordered to be
taken on record.
R/CR.RA/417/2022 ORDER DATED: 11/01/2023
4. However, in view of compounding arrived at between the
parties and when the matters are settled between them,
pursuant to which cheque amounts are deposited either before
this Court or before the lower Court, which is ordered to be paid
to the complainant, the judgment of conviction and order of
sentence passed by the learned Magistrate is required to be
quashed and set aside. In view of Section 147 of 'the Act', when
offence is made compoundable, the genuine compounding
entered into between the parties is required to be encouraged.
Considering the affidavits, it is clear that the compounding is
genuine, and therefore, impugned judgments of conviction and
order of sentence passed by the learned Chief Metropolitan
Magistrate, Ahmadabad in Criminal Cases and confirmed by
learned Additional Sessions Judge, Ahmadabad in Criminal
Appeals 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 levelled against him. Since the compounding between
the parties is arrived at revisional stage before this Court, the
petitioner is required to be imposed cost in view of the decision
of the Hon'ble Supreme Court in the case of Damodar S.
Prabhu V/s. Sayed Babalal reported in AIR 2010 SC 1907.
However, in view of paragraph 17 of the said judgment,
discretion is granted to the Competent Court to reduce the cost
on specific facts and circumstances of the case. As such, the
petitioner-accused is supposed to deposit 15% of the cheque
amount towards cost as settlement is arrived at revisional stage
but since the complainant has agreed to accept the cheque
amount and in lieu thereof, the judgments of conviction and
R/CR.RA/417/2022 ORDER DATED: 11/01/2023
order of sentence passed and confirmed against the petitioner-
accused are quashed and set aside, considering the submission
that there are multiple litigation against him as also because of
financial constraints, he could not pay the said amount, he had
to face the litigation as also the conviction, he is ordered to
deposit 10% of the cheque amounts in each of the cases with the
Gujarat State Legal Services Authority within a period of 4
(four) weeks from today. If he fails to deposit the said amount
within the time stipulated, this order shall be recalled and he
has to undergo the sentence. Registry is hereby directed to
issue final writ of these Revision Applications after ascertaining
that the aforesaid cost amount is deposited by the petitioner.
6. Registry of this Court as also the trial Court where the
amount is deposited, they are directed to pay it to Mr.Ashlesh
Upendra Shastri, Respondent No.2, original complainant
through account payee cheque / electronic mode after
ascertaining the identity.
7. Accordingly, the present Criminal Revision Applications
stand disposed of as allowed. Rule made absolute in each of the
matters.
Direct service is permitted.
(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA
