Gujarat High Court
Ishabhai Bhikhanbhai Kharai vs Arvindbhai Rajabhai Kamaliya on 23 January, 2024
NEUTRAL CITATION
R/CR.RA/110/2024 ORDER DATED: 23/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 110 of 2024
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ISHABHAI BHIKHANBHAI KHARAI
Versus
ARVINDBHAI RAJABHAI KAMALIYA
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
MR DIVYANG A JOSHI(13237) for the Respondent(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/01/2024
ORAL ORDER
1. With consent of the learned advocates appearing for the
respective parties, the matter is taken up for final hearing as
the matter is amicably settled between the parties and the
offence is bailable and compoundable and nothing survives in
the matter.
2. Rule, returnable forthwith. Learned advocates appearing
for the respondents waive service of notice of Rule on behalf
of respective parties.
3. By way of the present revision application filed under
Section 397 read with 401 of the Code of Criminal Procedure,
the applicant has prayed for quashing and setting aside the
impugned judgment and order dated 03/08/2023 passed by
the learned Sessions Judge, Veraval, District Gir Somnath in
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R/CR.RA/110/2024 ORDER DATED: 23/01/2024
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Criminal Appeal No.15 of 2023 as well as order dated
22/11/2022 passed by the learned 2 nd Additional Chief Judicial
Magistrate and JMFC, Veraval in Criminal Case No.901 of
2019.
3.1. Vide impugned order dated 22/11/2022 passed in
Criminal Case No.901 of 2019, the learned 2 nd Additional
Chief Judicial Magistrate and JMFC, Veraval was pleased to
convict the applicant accused and sentenced to undergo
simple imprisonment for a period of two years for the offence
punishable under Section 138 of the Negotiable Instrument
Act and has also ordered the applicant accused to pay one and
half time the amount of cheque to the original complainant
and in default to pay the same, to undergo further three
months simple imprisonment.
3.2. Being aggrieved and dissatisfied by the aforesaid order
of the learned Magistrate Court, the present applicant filed
Criminal Appeal No.15 of 2023 before the learned Sessions
Judge, Veraval, District Gir Somnath and the learned Sessions
Judge, Veraval, District Gir Somnath, vide order dated
03/08/2023, confirmed the judgment and order passed by
learned Magistrate Court, Veraval and rejected the appeal of
the present applicant and the present applicant was directed
to surrender before the learned trial court for execution of
sentence.
4. Learned advocate for the applicant submits that the
applicant was directed to surrender before the learned trial
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R/CR.RA/110/2024 ORDER DATED: 23/01/2024
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court by the learned Sessions Court within a period of seven
days but the applicant did not surrender and as of now the
applicant has surrounded on 11/01/2024 and at present he is
in District Jail, Junagadh since then.
5. Learned advocate for the applicant further submits that
after the aforesaid orders and fling of the present revision
application, the parties have amicably settled the matter and
the complainant was present before the Court on last occasion
and the complainant has filed an affidavit of compromise
stating that no grievance is pending between them and he has
received full and final payment and hence, the present
application may be allowed and the order of conviction and
sentence imposed by the learned Magistrate Court which has
been confirmed by the learned Sessions Court may be
quashed and set aside.
6. Learned advocate for the respondent original
complainant submits an affidavit of the original complainant
which is taken on record.
7. Learned advocate for the respondent original
complainant also submits that the matter is amicably settled
between the parties and the amount deposited by the
applicant before the learned trial court has already been
withdrawn by the respondent no.1 original complainant and
the remaining amount has been received by the original
complainant and the original complainant has no objection if
present application is allowed and the conviction recorded by
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R/CR.RA/110/2024 ORDER DATED: 23/01/2024
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the learned Trial Court as well as the learned Appellate Court
is quashed and set aside.
8. Considering the fact that as under Section 147 of the
Negotiable Instrument Act, the offence is compoundable and
permissible to settle the dispute at any stage and therefore,
permission to settle the dispute is required to be allowed. It is
pertinent to note that the applicant has settled the dispute at
the level of High Court after the confirmation by the appellate
Court and therefore, the present application requires
consideration.
9. The learned advocates for the respective parties have
jointly submitted that the matter is settled between the
parties and the original complainant does not want to pursue
further litigation. The original complainant has filed the
affidavit and has admitted the contents of the affidavit.
Learned advocate for the complainant has stated that the
original complainant has no objection, if the conviction
recorded by the learned Trial Court as well as the learned
Appellate Court is set aside.
10. This Court has also considered the facts and
circumstances arising out of the present application as also
the decision passed in case of Damodar S. Prabhu Vs.
Sayed Babalal H, reported in 2010(5) SCC 663. It appears
that further continuation of criminal proceedings in relation to
the impugned proceeding against the applicant would be
unnecessary harassment to the applicant.
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11. Considering the nature of dispute between the parties
which is private in nature, the matter requires consideration
and it appears that the trial would be futile and further
continuance of the proceedings would amount to abuse of
process of law and hence, to secure the ends of justice, the
order is required to be quashed and set aside in exercise of
powers conferred upon this Court.
12. Resultantly, this application is allowed. The impugned
judgment and order dated 03/08/2023 passed by the learned
Sessions Judge, Veraval, District Gir Somnath in Criminal
Appeal No.15 of 2023 as well as judgment and order dated
22/11/2022 passed by the learned 2 nd Additional Chief Judicial
Magistrate and JMFC, Veraval in Criminal Case No.901 of
2019 are hereby quashed and set aside and the applicant the
applicant shall be released forthwith, if his presence is no
longer required in any other criminal offence subject to the
applicant deposits 15% of the amount of cheque before the
Gujarat High Court Legal Services Committee within a period
of six weeks from the date of his release.
13. Rule is made absolute. Direct service is permitted.
(S. V. PINTO,J)
ILA
