Gujarat High Court
Harshitbhai Baleshbhai ... vs State Of Gujarat on 20 January, 2023
Bench: Umesh A. Trivedi
R/CR.RA/55/2023 ORDER DATED: 20/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 55 of 2023
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HARSHITBHAI BALESHBHAI SUKHADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR SHRIRAJ D SHAH(10475) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGANA JHALA, ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 20/01/2023
ORAL ORDER
1. Mr. Rohit Sharma, learned advocate has instructions
to appear for respondent no.2. Mr. Rohit Sharma, learned
advocate is in the process of filing his Vakalatnama for
respondent no.2. Registry is directed to accept the
Vakalatnama on behalf of respondent no.2.
2. RULE returnable forthwith. Ms. Divyangana Jhala,
learned Additional Public Prosecutor, waives service of notice
of rule on behalf of respondent no.1 and Mr. Rohit Sharma,
learned advocate waives service of notice of rule on behalf of
respondent no.2.
3. This Criminal Revision Application is directed
against an order passed by the learned Additional Chief Judicial
R/CR.RA/55/2023 ORDER DATED: 20/01/2023
Magistrate, Padra dated 24.11.2021 in Criminal Case No.1220
of 2019 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 ½ month Simple Imprisonment. The said judgment
of conviction and order of sentence was carried in Appeal,
being Criminal Appeal No. 226 of 2021, which also came to be
dismissed by the learned 4th Additional Sessions Judge,
Vadodara dated 05.01.2023. Both these orders are under
challenge in this Criminal Revision Application.
4. The petitioner - accused has produced affidavit at
page 61 alongwith the Revision Application stating therein
that the matter is settled between the parties and respondent
no.2 - Pravinsinh Harisinh Solanki is paid Rs.1,70,000/- on the
date of execution and he also acknowledged the receipt of
Rs.37,500/- as ordered by the learned Judge whereas it is
stated in the affidavit that an amount of Rs.42,500/-, which is
deposited before the appellate Court at the appeal stage if it is
given to him, respondent no.2 - Pravinsinh Harisinh Solanki -
original complainant has no objection if the judgment of
conviction and order of sentence passed by the trial Court and
confirmed by the appellate Court are quashed and set aside.
5. Over and above that, there is an affidavit tendered
today by the learned advocate representing respondent no.2
herein acknowledging the filing of affidavit executed on
R/CR.RA/55/2023 ORDER DATED: 20/01/2023
17.01.2023 and the receipt of the amount stated therein. The
affidavit on behalf of respondent no.2 is ordered to be taken on
record.
7. 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, Padra dated 24.11.2021 in Criminal Case No.1220
of 2019 and confirmed by the learned 4th Additional Sessions
Judge, Vadodara dated 05.01.2023 in Criminal Appeal No. 226
of 2021 are hereby quashed and set aside.
8. 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 2010 SC 1907.
However, in view of paragraph 17 of the said judgment,
R/CR.RA/55/2023 ORDER DATED: 20/01/2023
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. However, considering the submission that the
since the petitioner - accused was not able to repay the
amount of cheque dishonoured he had to face trial as also
appeal and he has undergone agony of hanging sword on him
uptill now, and therefore, the cost may be reduced to an
extent.
9. 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.
10. The amount of Rs.42,500/-, which is deposited
before the appellate Court at the stage of appeal by the
petitioner - accused is ordered to be disbursed to respondent
no.2 - original complainant either by an account payee cheque
or electronic mode after ascertaining the identity to which the
petitioner - accused has no objection.
R/CR.RA/55/2023 ORDER DATED: 20/01/2023
11. Accordingly, the present Criminal Revision
Application shall stand disposed of as allowed. Rule is made
absolute to the aforesaid extent.
(UMESH A. TRIVEDI, J.)
siji
