IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION NO. 229 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE UMESH A. TRIVEDI ========================================================== ========================================================== PATEL SHAILESHBHAI VITHALBHAI Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:
MR BHARAT JANI(352) for the Applicant(s) No. 1 MR SAURABH M PATEL(5019) for the Respondent(s) No. 2 MR RONAK RAVAL APP (2) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI Date : 08/01/2020 ORAL JUDGMENT
1. By way of this revision application, the petitioner- accused is challenging the judgment of conviction and order of sentence passed by learned Additional Civil Judge and Judicial Magistrate First Class – Nominated Presiding Officer, Evening Court No.2, Patan, dated 5.9.2009, convicting the petitioner – accused for an offence punishable under Section 138 of the Negotiable Instruments Act and directing him to undergo simple imprisonment for one year and also imposed a fine of Rs.5,000/- and in default of payment of fine, he was directed to further undergo 3 months’ simple imprisonment. Over and above, a compensation under Section 357(3) of the Criminal Procedure Code, 1973 equivalent to the cheque amount was ordered by the learned Magistrate, to be paid to the complainant.
2. The said judgment of conviction and order of sentence came to be challenged by the petitioner-accused by way of Criminal Appeal No.42 of 2009. The learned Appellate Judge has partly allowed the appeal so far as it relates to ordering compensation to be paid to the complainant and rest of the judgment of conviction and sentence imposed, is retained by the appellate Court.
3. Both these judgments are under challenge before this Court. However, during the course of hearing, Respondent No.2 herein, who is also original complainant, has filed an affidavit through learned advocate representing him, which is ordered to be taken on record. Mr.Saurabh M.Patel, learned advocate for Respondent No.2 herein identifies the original complainant, who is present before the Court. It is stated in the affidavit that the matter is settled between the parties and they have arrived at an amicable settlement. The terms of compounding is also mentioned in the affidavit and they volunteers that they shall abide by it. In view of Section 147 of the Negotiable Instruments Act, the offence is made compoundable. Therefore, the affidavit tendered by the complainant and the compounding entered into between accused and complainant is taken on record and it is accepted. Pursuant to compounding arrived at between the parties and accepted by this Court, the judgment of conviction and order of sentence passed by trial Court and partly confirmed by learned appellate Court are hereby quashed and set aside, in view of Sub- Section (8) of Section 320 of the Code of Criminal Procedure, 1973. Bail bonds shall stands cancelled.
4. It is submitted that out of cheque amount, Rs.2 Lacs is already paid in cash by the petitioner-accused. However, at the time of hearing of this revision application earlier Rs.1,00,000/- came to be deposited by the petitioner-accused before this Court, in two different installments of Rs.50,000/- each. As agreed between the parties, the amount deposited by the petitioner-accused along with accrued interest if any is ordered to be given to the Respondent No.2 herein, original complainant, to which petitioner-accused has no objection, who is also present before the Court and duly identified by Mr.Jani, learned advocate for the petitioner.
5. The Registry is directed to issue cheque of the principal amount with the accrued interest if any in favour of Respondent No.2 herein and entrust it to him after ascertaining the identity.
6. Since compounding is arrived at revisional stage before this Court, in view of the judgment of the Apex Court reported in the case of Damodar S.Prabhu V/s. Sayed Babalal H. reported in (2010) 5 SCC 663, the petitioner-accused is directed to deposit Rs.60,000/- (Rupees Sixty Thousand Only) being 15% of the cheque amount with the Gujarat State Legal Services Authority within a period of four weeks from today .
7. If petitioner-accused fails to deposit the aforesaid amount of cost of Rs.60,000/- within the time prescribed, the trial Court shall issue warrant against him and he shall serve out the sentence as imposed by the learned trial Court and confirmed by the appellate Court.
8. Rule is made absolute.
ASHISH M. GADHIYA (UMESH A. TRIVEDI, J)