Atul Chandubhai Patel vs State Of Gujarat

B.N. Karia, J

Authority letter giving authority to learned advocate to conduct the matter by respondent No.2 and affidavit filed by the complainant are taken on

record.

By way of present application, the applicant has challenged the impugned judgment and order dated 01.06.2019 passed by learned Additional

Judicial Magistrate First Class, Halol in Criminal Case No. 1395 of 2018 which was confirmed by learned 5th Additional Sessions Judge, Panchmahal

at Halol vide order dated 20.09.2019 in Criminal Appeal No. 12 of 2019.

The facts of the present case are summarized as under:

2.1 The applicant - accused had given a cheque for an amount of Rs. 1,50,000/- payable on State Bank of India, Halol Branch, Halol having cheque

No. 161592 dated 5.5.2018 towards the outstanding dues with a promise that it will be honored on presentation in the bank. The complainant deposited

the said cheque in Bank of India, Halol Branch for the purpose of clearing, but the said cheque was returned unpaid with endorsement “insufficient

of fund†on 7.5.2018 and therefore, on 6.6.2018, the complainant has issued statutory notice under Section 138(b) of the Negotiable Instruments Act

through R.P.A.D and demanded the amount of cheque from the applicant -accused. This notice was returned with the endorsement that applicant-

accused is not found on the said address. Thus, the complaint was lodged thereof and same has been registered as Criminal Case NO.1395 of 2018

and in the said case, the applicant was sentenced. Thereafter, the applicant approached the learned Sessions Court but, vide Judgment and order

20.09.2019, learned 5th Additional Sessions Judge, Panchmahal at Halol in Criminal Appeal No.12 of 2019 confirmed the sentence imposed upon the

present applicant. Thus, being aggrieved with the said order, the applicant has preferred present application.

Heard learned advocate for the applicant.

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.1,50,000/- i.e. the cheque amount. It is further submitted that as per order dated 11.10.2019

passed by this Court, applicant has deposited Rs.75,000/- before the Registry of this Court which may be permitted to be withdrawn by the

complainant and thereafter, a cheque of Rs.75,000/- bearing cheque No.161601 of State Bank of India, Halol Branch was issued by the present

applicant in favour of the respondent No.2 on 26th November 2019 and was encashed on 30th November 2019.

Learned advocate for the respondent No.2 has submitted that, complainant has filed affidavit declaring that the dispute is amicably settled between

the parties and in light of the statement, the complainant does not wish 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 1st June 2019 passed in Criminal Case No.1395 of 2018 and

confirmed by the learned 5th Additional Sessions Judge, Panchmahal vide order dated 20th September 2019 in Criminal Appeal No.12 of 2019.

Learned advocate for the respondent No.2 has produced an affidavit of the respondent No.2 executed before the public Notary and address of the

Notary was also shown as Wells Fargo Bank N.A., Riverlade Park 6235 Baltimore Ave, Riverlade, MD20737.Learned advocate for the respondent

No.2 has also produced a letter of authority in his favour for doing needful and quash the set aside the impugned judgment and orders on the basis of

settlement arrived at between the complainant and present applicant.

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 :

“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)â€​.

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.â€​

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 application is required to be allowed and the parties be permitted to compound the offence.

In the result, the revision application is allowed. The impugned judgment and order dated 1.6.2019 passed by learned Additional Chief Judicial

Magistrate, Halol in Criminal Case No. 1395 of 2018 which was confirmed by learned 5th Additional Sessions Judge,Panchmahal at Halol vide order

dated 20.9.2019 in Criminal Appeal No. 12 of 2019 stand quashed and set aside. The applicant-accused as acquitted of the charge under Section 138

of the Negotiable Instruments Act.

Rs.75,000/- deposited by the present applicant before the Registry of this Court shall be disbursed in the account opened in the Bank of India of

the complainant, being No. 208410110001528 within a period of two weeks from the date of passing of this order.

Rule is made absolute to the aforesaid extent. Direct service is permitted.