Gujarat High Court
Udaysinh Virbhadrasinh Solanki vs State Of Gujarat on 16 April, 2024
NEUTRAL CITATION
R/CR.RA/254/2024 ORDER DATED: 16/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 254 of 2024
==========================================================
UDAYSINH VIRBHADRASINH SOLANKI
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR HITESH L GUPTA(3937) for the Applicant(s) No. 1
MR NAYAN L GUPTA(11798) for the Applicant(s) No. 1
MR BM MANGUKIYA(437) for the Respondent(s) No. 2
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 2
MR HK PATEL, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 16/04/2024
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule for the
respondent - State and learned advocate Mr.B.M.Mangukiya
waives service of rule for respondent No.2 - original complainant.
2. The revision has been filed challenging the concurrent
findings arrived at by the Court below whereby in Criminal Case
No.1531 of 2011, the learned Trial Court has convicted the
revisionist for the offence under Section 138 of the Negotiable
Instruments Act and ordered to undergo simple imprisonment of
six months and also passed the order of compensation equal to
the amount of the cheque, failing which simple imprisonment of
further one month has been awarded. The revisionist
unsuccessfully assailed the said judgment and order in Criminal
Appeal No.18 of 2015 whereby the learned Additional Sessions
Judge, Junagadh confirmed the judgment and order. Hence
NEUTRAL CITATION
R/CR.RA/254/2024 ORDER DATED: 16/04/2024
undefined
revision.
3. When the revision is called out for hearing, the
complainant along with his learned advocate Mr.Mangukiya is
present. Both the parties as well as their learned advocates
submit that the parties have amicably settled their dispute and
amount of cheque has been received by the first informant. In
support of their statement, an affidavit of respondent No.2 is
also produced which is taken on record. Section 147 of the
Negotiable Instruments Act permits compounding of offence at
any stage of the hearing. Therefore, compounding of the offence
is also permitted at the stage of the present revision.
4. After verifying voluntary character of the compromise and
the request for compounding of offence, the compounding of the
offence is permitted.
5. Learned advocate appearing for the petitioner in sync with
learned advocate for the complainant submit that the father of
the petitioner is suffering from cancer. The petitioner could not
manage if the entire amount of cheque is to be paid to the
complainant but has paid the amount through post dated
cheques. Therefore, it is earnestly submitted that the amount of
compounding charges either should be waived or should be
reduced to permissible minimal limit and should not be taken
more than 10% of the cheque amount. The guidelines and
directions to charge the compounding charge has been laid down
by the Full Bench of Hon'ble Supreme Court in Damodar S.
Prabhu V/s. Sayed Babalal H. reported in AIR 2010 SC 1907.
The object and purpose of introducing the guidelines and
NEUTRAL CITATION
R/CR.RA/254/2024 ORDER DATED: 16/04/2024
undefined
direction was to encourage litigant in the cheque dishonour case
to opt for compounding during early stage of litigation to curb
choking of the criminal justice system; for graded system of
imposing costs on parties who unduly delay compounding of the
offence and thirdly for controlling of the filing of multiple
complaints that are relatable to the same transaction. The
guidelines issued by the Hon'ble Supreme Court reads in para
21 of the judgment. It is extracted below :
"21. With regard to the progression of litigation in
cheque bouncing cases, the learned Attorney
General has urged this Court to frame guidelines for
a graded scheme of imposing costs on parties who
unduly delay compounding of the offence. It was
submitted that the requirement of deposit of the
costs will act as a deterrent for delayed composition,
since at present, free and easy compounding of
offences at any stage, however belated, gives an
incentive to the drawer of the cheque to delay
settling the cases for years. An application for
compounding made after several years not only
results in the system being burdened but the
complainant is also deprived of effective justice. In
view of this submission, we direct that the following
guidelines be followed:-
THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the Writ of Summons
be suitably modified making it clear to the accused that
he could make an application for compounding of the
offences at the first or second hearing of the case and
that if such an application is made, compounding may be
allowed by the court without imposing any costs on the
accused.
(b) If the accused does not make an application for
compounding as aforesaid, then if an application for
NEUTRAL CITATION
R/CR.RA/254/2024 ORDER DATED: 16/04/2024
undefined
compounding is made before the Magistrate at a
subsequent stage, compounding can be allowed subject
to the condition that the accused will be required to pay
10% of the cheque amount to be deposited as a condition
for compounding with the Legal Services Authority, or
such authority as the Court deems fit.
(c) Similarly, if the application for compounding is made
before the Sessions Court or a High Court in revision or
appeal, such compounding may be allowed on the
condition that the accused pays 15% of the cheque
amount by way of costs.
(d) Finally, if the application for compounding is
made before the Supreme Court, the figure would
increase to 20% of the cheque amount."
6. Profitable reference to para 25 is also required. It is
extracted as under :
"25. The graded scheme for imposing costs is a means
to encourage compounding at an early stage of litigation.
In the status quo, valuable time of the Court is spent on
the trial of these cases and the parties are not liable to
pay any Court fee since the proceedings are governed by
the Code of Criminal Procedure, even though the impact
of the offence is largely confined to the private parties.
Even though the imposition of costs by the competent
court is a matter of discretion, the scale of costs has
been suggested in the interest of uniformity. The
competent Court can of course reduce the costs with
regard to the specific facts and circumstances of a case,
while recording reasons in writing for such variance.
Bona fide litigants should of course contest the
proceedings to their logical end."
7. In view of clause (c), when the compounding is made before
the High Court in revision or appeal the compounding may be
allowed on condition that accused pays 15% of the cheque
amount by way of cost. So to come out from the word 'may' used
NEUTRAL CITATION
R/CR.RA/254/2024 ORDER DATED: 16/04/2024
undefined
in guideline/direction the accused has to establish the
exceptional case. In present case it was stated that the father of
the accused is suffering from cancer. However, no doucment
supporting the case of the accused is placed on record. What
further could be seenthat the Criminal Case under Section 138
of NI Act for dishonour of cheque was filed in the year 2011 as
Criminal Case No.1531 of 2011 before the jurisdictional Court.
The proceedings continued and conducted upto 23.01.2015, the
day on which the accused came to be convicted under Section
138 of NI Act and was sentenced to undergo simple imrisonment
for six months and to pay compensation of Rs.9,28,480/-.
During the proceedings of criminal case which runs for five
years, accused did not attempted to compound the offence.
Instead the matter is carried to challenge by way of filing
Criminal Appeal No.18 of 2015. The appeal is decided against
the revisionist on 11.01.2024. So almost for nine years criminal
appeal proceeded. Even during this time period no attempt has
been made to compound the offence. The petitioner accused who
has faced the concurrent finding of conviction compounded the
offence first time after passing of thirteen years of litigation. So
in view of the guidelines laid donw by the Hon'ble Supreme
Court, the Court is required to charge 15% of the cheque
amount by way of cost which is required to be deposited in
District Legal Service Authority.
8. For the foregoing reasons, I pass the following order :
(I) The impugned judgment and order of conviction
under Section 138 of the Negotiable Instruments Act and
NEUTRAL CITATION
R/CR.RA/254/2024 ORDER DATED: 16/04/2024
undefined
passing of sentence thereof by the learned Trial Court in
Criminal Case No.1531 of 2011 and confirmed by the
Sessions Court in Criminal Appeal No.8 of 2015 are hereby
quashed and set aside on account of compounding of
offence with the complainant.
(II) In view of this, the revisionist shall not be under
obligation to serve the remaining sentence and the
revisionist shall be treated as acquitted and is to be set free
on account of compounding of offence with the
complainant. If any amount is paid towards fine by the
revisionist, same may be refunded after due verification.
9. Accordingly, the present revision stands allowed subject to
payment of 15% of the cheque amount of around Rs.9,28,480/-,
which comes to Rs.1,40,000/-, by the revisionist with the
Gujarat State Legal Services Authority within three months from
today. The receipt thereof shall be produced on record. Rule is
made absolute to the aforesaid extent. Direct service permitted.
(J. C. DOSHI, J)
GAURAV J THAKER
