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CR.RA/580/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 580 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
HARSHADBHAI
SHANABHAI PATEL - Applicant(s)
Versus
ASHOKKUMAR
MANIBHAI PATEL - CHAIRMAN OF SHRI DAKOR PEOPLES & 1 -
Respondent(s)
=========================================================
Appearance
:
MR
RAXIT J DHOLAKIA for
Applicant(s) : 1,
MR MURALI N DEVNANI for Respondent(s) : 1,
MR
M.R. MENGDEY, ADDL.PUBLIC PROSECUTOR for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 22/11/2010
ORAL
JUDGMENT
Leave
to amend the cause title.
Rule.
Mr.Murali Devnani, learned advocate waives service of notice of rule
on behalf of respondent No.1 – original complainant and
Mr.M.R.Mengdey, learned Additional Public Prosecutor waives service
of notice of rule on behalf of respondent No.2 – State.
In
the facts and circumstances of the case and with the consent of the
learned advocates appearing on behalf of the respective parties and
as it is reported that parties have settled the dispute and entire
amount under the cheque in question, for which judgement and order
of conviction has been passed, has been fully paid up and as the
petitioner is ready and willing to pay/deposit 15% amount of the
total amount under cheque in question towards cost to be deposited
with the Gujarat High Court Legal Services Committee, present
Criminal Revision Application is taken up for final hearing today.
Present
Criminal Revision Application, under Section 397 read with Section
401 of the Code of Criminal Procedure, has been preferred by the
petitioner – original accused challenging the judgement and
order dated 29/09/2010 passed by learned Additional District Judge
and FTC No.2, Nadiad in Criminal Appeal No.18 of 2010 as well as the
judgement and order dated 05/02/2010 passed by the learned Judicial
Magistrate (First Class), Dakor in Criminal Case No.1154 of 2003, by
which, the petitioner has been convicted for the offence punishable
under Section 138 of the Negotiable Instruments Act (hereinafter
referred to as “N.I.Act”) and is sentenced to undergo
rigorous imprisonment for a period of one years and is also directed
to pay a sum of Rs.3,000/- towards fine and is further directed to
pay total a sum of Rs.3,50,000/- towards compensation.
Today
when the present Criminal Revision Application is taken up for final
hearing, learned Advocates appearing on behalf of the respective
parties more particularly learned advocate appearing on behalf of
the complainant- respondent No.1 as well as original accused –
petitioner herein have jointly submitted that in the facts and
circumstances of the case and as the entire amount was to be paid
and the said amount was to be received by the society, the matter is
settled between the parties and learned
advocate appearing on behalf of the respondent No.1 – original
complainant has stated at the bar that he has no objection if the
offence is permitted to be compounded and the impugned judgement and
orders passed by both the Courts below are quashed and set aside on
any condition that may be imposed by this Court.
learned
advocates appearing on behalf of the respective parties have
heavily relied upon the decision of the
Hon’ble Supreme Court in the case of Damodar S. Prabhu
Versus Sayed Babalal H., reported in (2010)5 SCC 663 and
have requested to permit the respective parties to compound the
offence and quash and set aside the impugned judgement and orders
passed by both the Courts below.
Mr.Dholakia,
learned advocate appearing on
behalf of the petitioner – original accused has stated
at the bar that the entire amount of Rs.4,48,000/- due and payable
under the cheque in question, for which, offence under Section 138
of the N.I.Act was registered, and for which the petitioner has been
convicted, has been paid. The aforesaid statement is confirmed by
Mr.Murali Devnani, learned advocate appearing on behalf of
respondent No.1 – original complainant. He has produced on
record xerox copy of the Certificate issued by respondent No.1
Society – original complainant dated 20/11/2010 certifying
that the entire amount due and payable under the cheque in question
has been paid. The same is directed to be taken on record.
Mr.Dholakia,
learned advocate appearing on
behalf of the petitioner has stated at the bar that he has
brought Demand Draft of Rs.67,200/- in favour of Gujarat High Court
Legal Services Committee, being 15% of the total amount due and
payable under the cheque in question, towards costs, which is to be
paid, as observed by the Hon’ble
Supreme Court in the case of Damodar S. Prabhu. (Supra).
Mr.Dholakia,
learned advocate appearing on
behalf of the petitioner has submitted that the aforesaid
Demand Draft shall be deposited with the Authority during the course
of the day.
Mr.M.R.Mengdey,
learned Additional Public Prosecutor has requested to pass
appropriate order in the facts and circumstances of the case.
Having
heard learned advocates appearing on behalf of the respective
parties and considering the subsequent development and settlement
between the original complainant – respondent no.1 and
original accused – petitioner and considering the fact that
the entire amount due and payable by the petitioner to the
respondent no.1 under the cheque in question, has been paid by the
petitioner – original accused and as the petitioner is also
paying/depositing a sum of Rs.67,200/-, being 15% of the total
amount due and payable under the cheque in question, towards costs,
to be deposited as observed by the
Hon’ble Supreme Court in the case of Damodar S. Prabhu
(supra) and considering the decision of the
Hon’ble Supreme Court in the case of Damodar S. Prabhu
(supra), the petitioner – original accused and respondent no.1
– original complainant, are hereby permitted to compound the
offence committed by the petitioner – original accused under
Section 138 of the N.I.Act and consequently, on deposit of
Rs.67,200/- being 15% of the total amount due and payable under the
cheque in question, both the impugned judgement and orders, more
particularly judgement and order dated 29/09/2010 passed by learned
Additional District Judge and FTC No.2, Nadiad in Criminal Appeal
No.18 of 2010 as well as the judgement and order dated 05/02/2010
passed by the learned Judicial Magistrate (First Class), Dakor in
Criminal Case No.1154 of 2003 are hereby quashed and set aside.
Consequently, if the petitioner herein original accused is in jail,
he shall be set at liberty forthwith, if not required in any other
case. Rule is made absolute accordingly.
Direct
Service is permitted.
[M.R.
SHAH, J.]
rafik
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