Bharatbhai Ganpatlal Suthar vs State Of Gujarat

B.N. Karia, J

Rule returnable forthwith. Mr.Hardik Soni, learned APP waives service of notice of rule for and on behalf of the respondent-State and Mr.Saurabh

Chande, learned advocate waives service of notice of rule for and on behalf of the respondent No.2

By way of present Criminal Revision Application, applicant has challenged the order of conviction and sentence dated 26. 11.2020 passed by

learned Judicial Magistrate First Class, Deesa in Criminal Case No. 2372 of 2015 convicting the applicant for the offence punishable under Section

138 of the Negotiable Instruments Act (for short “N.I.Actâ€) as well as order dated 1.1.2022 passed in Criminal Appeal No. 13 of 2021 by learned

2nd Additional Sessions Judge, Deesa wherein, the learned First appellate Court has been pleased to dismiss the said appeal and confirmed the

judgement and order of conviction and sentence passed by the learned trial Court.

Today, respondent No.2 Sanjaykumar Parshottamdas Patel (H.U.F) was present before this Court through video conferencing and he was

identified by learned advocate for the the respondent No.2. Respondent No.2 has submitted that dispute is settled between the parties and cheque

amount was received by the complainant. He has filed affidavit dated 8th February, 2022. Learned advocate for the respondent No.2 has identified

the signature of the respondent No.2 as well as photographs in the affidavit which was executed before the Notary on 8th February, 2022.

Respondent No.2 has no objection if impugned judgement and orders passed by the Court below are quashed by this court in view of settlement

arrived at between them.

An Affidavit was filed by respondent No.2- Sanjaykumar Parshottamdas Patel (H.U.F) wherein, it is declared that cheque amount is received by

him from the present applicant and he does not want to proceed with the matter. He has no objection if the impugned complaint is quashed by this

Court.

Learned advocates for the respective parties also confirm that the settlement is arrived at between the parties and stated that the dispute is

amicably settled and nothing requires to be adjudicated on merits by this Court. Therefore, they have requested this Court to dispose of this Revision

Application by quashing and setting aside the impugned judgement and orders challenged in the present revision application.

Learned APP appearing for the respondent-State submits that the dispute is private in nature and therefore, requested to pass necessary order.

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)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, I am of the opinion that the revision application is

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

Considering the facts of the case, submissions made by learned advocates for the applicant and respondent No.1 as well as learned APP, it appears

that the dispute is settled between the parties..

In the result, the revision application is allowed. The judgment and order dated 26.11.2020 passed by learned Judicial Magistrate First Class, Deesa

in Criminal Case No. 2372 of 2015 as well as order dated 1.1.2022 passed in Criminal Appeal No. 13 of 2021 by learned 2nd Additional Sessions

Judge, Deesa stand quashed and set aside. The applicant-accused is acquitted of the charge under Section 138 of the Negotiable Instruments Act

except he is not convicted in connection with any other offence.

Learned advocate for the applicant further submits that applicant has deposited 20% cheuqe amount before the Appellate Court and thereafter,

entire cheque amount has already been paid to the complainant-respondent No.2. Therefore, applicant may be permitted to withdraw such 20%

cheque amount deposited by him before the Appellate Court.

Learned advocate for the respondent No.2 has submitted that he has no objection if 20% cheuqe amount deposited by the present applicant is

permitted to be withdrawn by the present applicant.

Considering the submissions made by learned advocates for the respective parties, 20% cheque amount deposited by the present applicant shall be

refunded to the present applicant after due verification by the concerned officer of the trial Court.

Registry shall communicate this order to the concerned Sessions Court as well as concerned jail authorities through Fax/Email. Rule is made

absolute to the aforesaid extent.