Ganubhai Kanjibhai Bharvad vs State Of Gujarat
2023 Latest Caselaw 635 Guj

     R/CR.RA/1305/2022                        ORDER DATED: 23/01/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL REVISION APPLICATION NO. 1305 of 2022
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             GANUBHAI KANJIBHAI BHARVAD
                          Versus
                     STATE OF GUJARAT
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Appearance:
MR SUMIT V CHAUDHARI(9388) for the Applicant(s) No. 1
MR PM DAVE(263) 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 : 23/01/2023
                             ORAL ORDER

1. Rule. Ms. Divyangna Jhala, learned APP waives service of

notice of Rule for and on behalf of respondent - State.

Mr. P.M. Dave, learned advocate for respondent No. 2, waives

service of notice of Rule.

2. Mr. Anand Chopra, Authorized Signatory of HDFC Bank

Limited, respondent No. 2 herein - original complainant, is

present before the Court and duly identified by learned

advocate Mr. P.M. Dave, representing him.

3. According to the affidavit filed on behalf of the respondent

No. 2 - Mr. Anand Chopra, Authorized person of HDFC Bank

Limited, which is at page 67 in this compilation, it is mentioned

R/CR.RA/1305/2022 ORDER DATED: 23/01/2023

that the matter is settled between the parties for the amount

stated therein and petitioner - accused has already paid

Rs. 1,00,000/- by way of demand draft to the respondent No. 2

herein and Rs. 5,00,000/- are already deposited before the

Registry of this Court pursuant to order dated 27.12.2022 and if

the amount is disbursed in favor of the respondent No. 2,

respondent No. 2 - Bank has no objection if the judgment of

conviction and order of sentence passed by the trial Court and

confirmed by the appellate Court against the petitioner -

accused is quashed and set aside. 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.30,

Ahmedabad, dated 25.01.2019 in Criminal Case No. 1373 of

2016 and confirmed by the learned Additional Sessions Judge,

Court No. 06, Ahmedabad, by order dated 05.11.2022 in

R/CR.RA/1305/2022 ORDER DATED: 23/01/2023

Criminal Appeal No. 118 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.

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. However, Mr. Kartik K. Joshi, learned advocate for

Mr. Sumit V. Chaudhari, learned advocate for the petitioner -

accused, submitted that the accused is a Farmer and not well-

to-do person, and therefore, Bank has already settled the

matter even for the amount less than the cheque and actually

he is not in a position to pay the cost, that too, at the rate of

15%, as stated in the aforesaid decision of the Supreme Court.

R/CR.RA/1305/2022 ORDER DATED: 23/01/2023

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 that

discretion is given to the Court and considering his plight, more

particularly, when even respondent - complainant Bank has

also settled the dispute with him for lesser amount than the

cheque, I deem it fit to impose Rs. 80,000/-(Eighty Thousand

only) 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. The aforesaid cost amount is

to be deposited 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 Non-bailable warrant shall be

issued against him so as to undergo 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.

R/CR.RA/1305/2022 ORDER DATED: 23/01/2023

11. Pursuant to an order dated 08.12.2022, the petitioner -

accused was required to deposit Rs. 5,00,000/- on or before

22.12.2022. However, he could not deposit the said amount,

and therefore, time was extended till 28.12.2022 vide order

dated 27.12.2022. Pursuant to that order, amount of

Rs. 5,00,000/- in cash, is deposited before the Registry of this

Court. As per the terms of settlement, the aforesaid amount of

Rs. 5,00,000/- deposited in this case by the petitioner - accused

is to be disbursed in favor of respondent No. 2 - original

complainant herein.

Hence, Registry is hereby directed to disburse

Rs. 5,00,000/- (Five Lacs only) in favor of respondent No. 2 -

Bank, through an A/c Payee cheque or electronic mode after

ascertaining the identity, to which the petitioner - accused has

no objection.

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