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CR.RA/177/2011 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 177 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD 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 ?
=========================================================
BHUDARBHAI
MAKANBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ARVIND K THAKUR for
Applicant(s) : 1,
MR LR PUJARI, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR SHAILESH SHARMA for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 01/08/2011
ORAL
JUDGMENT
1.
Rule. Learned APP, Mr.L.R.Pujari and learned advocate, Mr.Shailesh
Sharma, waive service of rule on behalf of the respondent Nos.1 and
2 respectively.
2.
The applicant-accused was convicted for the offences punishable
under Section 138 of the Negotiable Instruments Act by the judgment
and order dated 30-6-2004 passed in Criminal Case No.1517 of 1999
by the learned Judicial Magistrate First Class, Morbi, and the
applicant-accused was sentenced to suffer simple imprisonment for
one year and to pay fine of Rs.5,000/-, in default, to suffer SI for
two months.
3.
Being aggrieved and dissatisfied with the said judgment and order,
the applicant accused preferred Criminal Appeal No.13 of 2004
before the learned Additional Sessions Judge, Morbi. However, the
learned Additional Sessions Judge, Morbi has dismissed the said
appeal vide judgment and order dated 30-3-2011.
4.
Both the aforesaid judgments and orders are under challenge by
the applicant in the present Criminal Revision Application.
5.
It has been submitted by learned advocate Mr.Thakur for the
applicant-accused that the matter is settled between the parties,
and as per the settlement, the complainant has received the cheque
amount in question. Learned advocate for the respondent has also
submitted that the matter is settled between the parties. He has
placed the copy of settlement on the record of the case. He has
also stated that now he has no grievance against the
applicant-accused.
6.
The Apex Court in the case of Vinay Devanna Nayak v. Ryot Seva
Sahakari Bank Ltd. reported in AIR 2008 SC 716 has
observed as under in paras 17
and 18 of the judgment:
“17.
As observed by this Court in Electronic Trade & Technology
Development Corporation Ltd. v. Indian Technologists and Engineers,
1996) 2 SCC 739, the object of bringing Section 138 in the statute
book is to inculcate faith in the efficacy of banking operation and
credibility in transacting business on negotiable instruments. The
provision is intended to prevent dishonesty on the party of the
drawer of negotiable instruments in issuing cheques without
sufficient funds or with a view to inducing the payee or holder in
due course to act upon it. It thus seeks to promote the efficacy of
banking operations and ensures credibility in transacting business
through cheques. In such matters, therefore, normally compounding
of offences should not be denied. Presumably, Parliament also
realized this aspect and inserted Section 147 by the
Negotiable Instruments(Amendment and Miscellaneous Provisions )Act,
2002 (Act 55 of 2002.”
“18.
Taking into consideration even the said provision(Section 147) and
the primary object underlying Section 138, in our judgment, there is
no reason to refuse compromise between the parties. We therefore
dispose of the appeal on the basis of the settlement arrived at
between the appellant and the respondent.”
7.
Applying the ratio of the aforesaid decision of the Apex Court to
the facts of the present case, I am of the opinion that this
Revision Application is required to be allowed and the parties be
permitted to compound the offence.
8.
In the result, the Revision Application is allowed. The judgment
and order of conviction and sentence dated 30-6-2004 passed in
Criminal Case No.1517 of 1999 by the learned Judicial Magistrate
First Class, Morbi as also the
judgment and order dated 30-3-2011 passed in Criminal Appeal No.13
of 2004 by the learned Additional Sessions Judge, Morbi dismissing
the same are hereby quashed and set aside and the
applicant-accused is set at liberty forthwith if he is not required
in any other case. The parties are permitted to compound the
offence. The amount of fine deposited by the applicant-accused
before the trial court or the appellate court in pursuance of the
order passed by them, the applicant is at liberty to withdraw the
said amount by submitting application before the appropriate Court.
Rule is made absolute. Direct service is permitted.
(M.D.Shah,J.)
syed/
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