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Judgment
B.N. Karia, J
Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State.
In Criminal Revision Application No.1233 of 2019, the applicant has challenged the impugned judgment and order dated 13.09.2019 passed by
learned Additional Sessions Judge, City Sessions Court No.16, Ahmedabad in Criminal Appeal No.120 of 2018 and the order dated 26.02.2018 passed
by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No.1817 of 2015 which came to be confirmed.
In Criminal Revision Application No.1234 of 2019, the applicant has challenged the impugned judgment and order dated 13.09.2019 passed by
learned Additional Sessions Judge, City Sessions Court No.16, Ahmedabad in Criminal Appeal No.119 of 2018 and the order dated 26.02.2018 passed
by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No.48 of 2016 which came to be confirmed.
The facts of the present case are summarized as under:
3.1 The applicant in both the applications is the Proprietor of A.S. Agency which is into the business of distributorship, whereby the applicant's
company bought goods and products and distributed/supplied them to the sub-distributors. The applicant's company had entered into a contract with
the company of the respondent No.2 namely Khimji Ramdas India Private Ltd. That, the present applicant-accused had purchased several goods from
the complainant during the period from 29.06.2015 to 09.07.2015 for the total sum of Rs.19,84,493/-. According to the business term, if the applicant
paid the said amount in time, the applicant, as per the discount scheme was entitled to a credit/commission sum of Rs.1,20,665/-. Hence, after
deducting the said credit for the sum of Rs.1,20,665/- from the actual due amount of Rs.19,84,493/-, accused can be indebted to the complainant for a
sum of Rs.18,63,828/-. The complainant demanded the amount, the applicant accused issued post-dated cheques. When the said cheques were
presented before the Bank, they were returned with an endorsement “payment stopped by drawerâ€. Therefore, the complainant issued a statutory
notice to the applicant on 08.12.2015 demanding the amount of dishonoured cheques. Thereafter, the complainant has filed the impugned complaint
under Section 138 of the N.I. Act. Thus, the complaint was lodged thereof and the same has been registered as Criminal Case No.1817 of 2015 as
well as Criminal Case No.48 of 2016 and in the said case, the applicant was sentenced. Thereafter, the applicant approached the learned Sessions
Court, Ahmedabad but, vide judgment and order dated 13.09.2019 passed by learned Additional Sessions Judge, City Sessions Court No.16,
Ahmedabad in Criminal Appeal No. 120 of 2018 as well as Criminal Appeal No.119 of 2018 respectively confirmed the sentence imposed upon the
present applicant. Thus, being aggrieved with the said order, the applicant has preferred present applications.
3.2 On a request being made by learned advocates of the respective parties to pass common order; as the parties are common in both the revision
applications, this common order is passed.
Heard learned advocate for the applicant and learned advocate for respondent No.2 in both the applications.
Today, when the matter was called out, a joint request was made by learned advocates for the respective parties that dispute is amicably settled
between the parties in full and final settlement of Rs.10,00,000/-. It is further submitted that as per order dated 04.08.2020 passed by this Court, the
applicant has deposited Rs.4,77,200/- in cash in HDFC Bank which was received by the complainant.
Learned advocate for the respondent No.2 has submitted that the complainant has filed affidavit declaring that the dispute is amicably settled
between the parties and in light of the statement, the complainant does not intend to continue this criminal proceedings. He has given his consent and
requested this Court to quash and set aside the impugned judgment and order of sentence dated 26.02.2018 passed in Criminal Case No.1817 of 2015
as well as Criminal Case No.48 of 2016 and confirmed by the learned Additional Sessions Judge, City Sessions Court No.16, Ahmedabad vide order
dated 13.09.2019 in Criminal Appeal No.120 of 2018 as well as Criminal Appeal No.119 of 2018. Learned advocate for the respondent No.2 has
produced an affidavit of the respondent No.2 executed on 08.08.2020 before the Public Notary. As per affidavit filed by the respondent No.2, full and
final settlement has been made in Rs.10,00,000/- as against legal dues of Rs.19,84,493/- in the following manner:
(a) Rs.4,77,200/- (Four Lacs seventy seven thousand two hundred) had been transferred through RTGS in the account of respondent No.2- company;
(b) Rs.3,72,800/-( Three Lacs seventy two thousand eight hundred) deposited by applicant in the Court will be permitted to be withdrawn by the
original complainant;
(c) Cheque No.000104 dated 1-7-2021 of Rs.1,50,000/- issued in favour of the respondent No.2- Company
He further submits that Aadhar Card as well as Pan Card of the complainant were produced on record along with the affidavit. Learned advocate for
the respondent No.2 has identified the original complainant through video conferencing. Learned advocate for the respondent No.2 has also requested
to quash the set aside the impugned judgment and orders on the basis of settlement arrived at between the complainant and the present applicant with
a request to permit the respondent no.2 to withdraw the amount of Rs.3,72,800/- (Three Lacs seventy two thousand eight hundred) deposited by
applicant before this Court.
Learned APP for the respondent-State has requested to pass necessary order.
Considering the facts and submissions made by the learned advocate for the respective parties, it appears that the dispute is settled between the
parties and no dispute remains to adjudicate by the Court.
The Apex Court in the case of Vinay Devanna Nayak V/s Ryot Seva Sahakari Bank Ltd. reported in AIR 2008 SC 71 6has observed as under in
paras 17 and 18 of the judgment :
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.
Applying the ratio of the aforesaid decision of the Apex Court to the facts of the present case as well as considering the settlement arrived at
between the parties, I am of the opinion that the revision applications are required to be allowed and the parties be permitted to compound the offence.
In the result, prevent revision applications are allowed. The impugned judgment and order dated 13.09.2019 passed by learned Additional Sessions
Judge, City Sessions Court No.16, Ahmedabad in Criminal Appeal No. 120 of 2018 as well as Criminal Appeal No.119 of 2018 and the order dated
26.02.2018 passed by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No.1817 of 2015 as well as
Criminal Case No.48 of 2016 respectively stand quashed and set aside. The applicant- accused in both the applications is acquitted of the charge
under Section 138 of the Negotiable Instruments Act. Rule is made absolute to the aforesaid extent in both the applications.
Original complainant-respondent No.2 is hereby permitted to withdraw the amount of Rs.3,72,800/-(Three Lacs seventy two thousand eight
hundred) deposited by applicant before this Court.
Registry is directed to send a copy of this order to the concerned Jail Authority as well as concerned Lower Court through fax or e-mail forthwith.