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CR.RA/773/2009 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 773 of 2009
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 ?
=========================================================
NATHUBHAI
M WAGHELA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Applicant(s) : 1,
MR LR PUJARI, APP for Respondent(s) : 1,
MR
YB VAGHELA for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 29/01/2010
ORAL
JUDGMENT
1. Heard
learned advocate Mr.A.M.Dagli, learned advocate for the applicant,
learned A.P.P. Mr.Pujari for respondent no.1 and learned advocate
Mr.Vaghela for respondent No.2.
2. The
present applicant has been convicted for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 by judgment and
order dated 17.11.2009 in Criminal Case No.285 of 2008 passed by
learned Metropolitan Magistrate, Negotiable Instrument Court No.6,
Ahmedabad. The said order was challenged in appeal being Criminal
Appeal No.316 of 2009 before the learned Additional Sessions Judge,
Ahmedabad. The said appeal is also dismissed by judgment and order
dated 11.12.2009. Both these orders are under challenge before this
Court.
3. It
is submitted by learned advocate Mr.Y.B.Vaghela that he is appearing
on behalf of the original complainant and he will file his
vakalatnama within three days. Office is directed to accept the
vakalatnama that may be filed by Mr.Vaghela. Mr.Vaghela submitted
that the matter is amicably settled between the original complainant
and the present appellant accused. He placed on record the
compromise purshis. The complainant is personally present in the
Court who is identified by Mr.Vaghela and Mr.Vaghela, on
instructions, states that the matter is settled amicably between the
parties and the complainant has no grievance against the present
appellant accused and requested to permit them to compound the
offence.
4. The
Apex Court in the case of Vinay Devanna Nayak V/s 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.
5. Applying
the ratio of the aforesaid decision of the Apex Court to the facts of
the present case, I am of the opinion that the revision application
is required to be allowed and the parties be permitted to compound
the offence.
6. In
the result, the revision application is allowed. The judgment and
order 17.11.2009 passed in Criminal Case No.285 of 2008 by learned
Metropolitan Magistrate, Negotiable Instrument Court No.6, Ahmedabad
and the judgment and order dated 11.12.2009 passed in Criminal Appeal
No.316 of 2009 by learned Additional Sessions Judge, Ahmedabad are
quashed and set aside. The accused is acquitted of the charge under
Section 138 of the Negotiable Instruments Act.
7. Rule
is made absolute to the aforesaid extent. Direct service today is
permitted.
(
M.D.Shah, J )
pathan
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