Gujarat High Court
Dilipsinh Fatehsinh Parmar vs State Of Gujarat on 11 January, 2023
Bench: Umesh A. Trivedi
R/CR.RA/9/2023 ORDER DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CONDONATION OF
DELAY) NO. 2 of 2022
In
R/CRIMINAL REVISION APPLICATION NO. 9 of 2023
With
In R/CRIMINAL REVISION APPLICATION NO. 9 of 2023
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 1 of 2022
In
R/CRIMINAL REVISION APPLICATION NO. 9 of 2023
======================================
DILIPSINH FATEHSINH PARMAR
Versus
STATE OF GUJARAT
======================================
Appearance:
MR. JAVED S QURESHI(6999) for the Applicant(s) No. 1
MR.WASIM M PATHAN(6802) for the Respondent(s) No. 2
MS DIVYANGANA JHALA, ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 11/01/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION No.2 of 2022
1. This application was heard on 07.01.2023 and rule
was made returnable on 14.02.2023. However, on that very
day, learned advocate for the applicant requested that since
the matter is settled between the parties, it may be adjourned
for a week. Though the said request was accepted, the
R/CR.RA/9/2023 ORDER DATED: 11/01/2023
respective correction in the order could not be carried out due
to inadvertence. However, since the applicant as also
respondent no.2 - original complainant are present before the
Court and as the matter is settled between them, Registry was
directed to notify the said case today.
2. Mr. Vasim M. Pathan, learned advocate had filed his
appearance on 09.01.2023 in this case, which is also received
from the Registry today as it was not forming part of this case.
3. This application is filed praying for condonation of
156 days delay caused in preferring the aforesaid Revision
Application.
4. Since the matter is settled between the applicant -
accused and respondent no.2 - original complainant, he has no
objection if delay is condoned.
5. In view thereof, the present application is allowed
and the delay of 156 days caused in preferring the aforesaid
Revision Application is hereby condoned. Rule is made
absolute accordingly.
ORDER IN CRIMINAL REVISION APPLICATION NO.9 of
1. RULE returnable forthwith. Ms. Divyangana Jhala,
learned Additional Public Prosecutor, waives service of notice
of rule on behalf of respondent no.1 and Mr. Vasim Pathan,
R/CR.RA/9/2023 ORDER DATED: 11/01/2023
learned advocate waives service of notice of rule on behalf of
respondent no.2.
2. This Criminal Revision Application is directed
against an order passed by the learned Additional Chief Judicial
Magistrate, Kapadwanj dated 03.05.2019 in Criminal Case
No.1044 of 2016 convicting the petitioner for an offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the Act') and ordered him
to undergo 1 year Simple Imprisonment with fine of Rs.5000/-
and in default of payment of fine the petitioner was ordered to
undergo 1 month Simple Imprisonment. The said judgment of
conviction and order of sentence was carried in Appeal, being
Criminal Appeal No. 42 of 2021, which also came to be
dismissed by the learned 3rd Additional Sessions Judge, Kheda
at Kapadwanj dated 21.04.2022. Both these orders are under
challenge in this Criminal Revision Application.
3. Mr. Jayeshkumar Natwarlal Choksi - respondent
no.2 - original complainant is present before the Court and the
affidavit dated 20.12.2022 is forming part of the Revision
Application itself and he acknowledges the same having been
filed by him duly notarized and the signature of respondent
no.2 - original complainant is also identified by the learned
advocate representing him. It is mentioned in the affidavit
that the matter is settled between the parties and the original
complainant has received all his dues, and therefore, he has no
objection if the judgment of conviction and order of sentence
R/CR.RA/9/2023 ORDER DATED: 11/01/2023
passed by the trial Court and confirmed by the appellate Court
are quashed and set aside.
4. However, in view of compounding arrived at
between the parties and when the matter is settled between
them, pursuant to which the cheque amount is already paid to
the original complainant, as disclosed in the affidavit, 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 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 Judicial
Magistrate, Kapadwanj dated 03.05.2019 in Criminal Case
No.1044 of 2016 confirmed by the learned 3 rd Additional
Sessions Judge, Kheda at Kapadwanj dated 21.04.2022 in
Criminal Appeal No. 42 of 2021 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 Vs. Sayed Babalal reported in AIR
R/CR.RA/9/2023 ORDER DATED: 11/01/2023
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 Rs.30,000/- i.e. 15% of the cheque amount towards
cost as settlement is arrived at revisional stage. However,
considering the submission that the petitioner - accused is
coming from a lower strata of society and he is unable to keep
sufficient balance and so as to honor the cheque of only Rs.2
lakhs, he has undergone the agony of prosecution as also
imprisonment post dismissal of Appeal, the learned advocate
for the petitioner requested that the Court may exercise the
discretion as provided in the very said decision.
6. Considering the aforesaid submission and the
reasons mentioned hereinabove, the petitioner - accused is
directed to deposit Rs.15,000/- towards cost with the Gujarat
State Legal Services Authority within a period of four weeks
from today. If the petitioner fails to deposit the said amount
within the time prescribed, as aforesaid, he shall be taken into
custody by issuing non-bailable warrant by the learned trial
Court and the present order shall stand automatically recalled
and he would serve the sentence. Registry is hereby directed
to issue final writ of this revision application after ascertaining
that the aforesaid cost amount is deposited by the petitioner.
Since the petitioner - accused is in custody pursuant to
dismissal of his Appeal, he is ordered to be released forthwith,
if not required in any other offence.
R/CR.RA/9/2023 ORDER DATED: 11/01/2023
7. Accordingly, the present Criminal Revision
Application shall stand disposed of as allowed. Rule is made
absolute to the aforesaid extent.
ORDER IN CRIMINAL MISC. APPLICATION No.1 of 2022
Since the main Revision Application is disposed of,
the present application also stands disposed of.
(UMESH A. TRIVEDI, J.)
siji
