Gopalbhai Nanubhai Patel vs State Of Gujarat & Anr

Hasmukh D. Suthar, J

1) Today, when the matter is called out, the learned Advocate for the applicant remained absent. Even on the earlier dates fixed in the matter, none had remained present on behalf of the applicant. Therefore, it clearly appears that the applicant is not interested in prosecuting the present matter. Hence, in view of the judgment of the Hon'ble Supreme Court in the case of Taj Mohammad Vs. State of Uttar Pradesh, in Criminal Appeal No.2421 of 2023, decided on 11.08.2023, this Court has considered the averments made in the present revision application as well as the material placed on record and has proceeded to decide the matter in absence of the applicant based on available material on record.

2) By way of present revision application under Sections 397 read with 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the judgment and order of conviction and sentence dated 19.02.2010 passed by the learned 2nd Additional Civil Judge and Judicial Magistrate First Class, Surendranagar in Criminal Case No.1215 of 2005, whereby, the trial Court has been pleased to hold the applicant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act (which shall hereinafter be referred to as "NI Act" for short) and sentenced to undergo simple imprisonment for two years and also directed to pay fine of Rs.10,000/- and in default of payment of fine to undergo further simple imprisonment for five months. The said order was assailed by way of filing Criminal Appeal No.16 of 2010, wherein, vide order dated 17.05.2011 passed by the learned Additional Sessions Judge, Surendranagar, the appeal came to be dismissed and the order of conviction has been confirmed and upheld by the concerned Additional District Judge. Hence, the present Revision Application is filed by the applicant-accused.

3) Perusing the record it appears that vide order dated 13.03.2012, while suspending the sentence under Section 389 of the Code of Criminal Procedure the applicant had deposited Rs.3,25,000/- i.e. the cheque amount and subsequently the said amount is withdrawn which transpires from the subsequent orders passed by the coordinate Bench. In view of above once the amount being deposited and as the offence under Section 138 of the NI Act is quasi-criminal in character and is compoundable and punishment under the NI Act is not a means of seeking retribution but is more a means to ensure payment of money and to promote credibility of cheques as a trustworthy substitute for cash payment. In absence of any perversity and no ground is found to upset the concurrent findings of the learned trial Court and Appellate Court and it is not open for Revisional Court to re-analyse and re-interpret the evidence in revisional jurisdiction. No case is made out to interfere with the reasons assigned by both the Courts.

4) At the same time this Court has taken into consideration the object of the Act as accused made payment, hence, in view of judgment of the Hon'ble Supreme Court Sanjabij Tari Vs Kishore S. Borcar, Neutral Citation 2025 INSC 1158, maintaining the conviction this Court is inclined to extend the benefit under the Probation of Offenders Act, 1958, to the applicant-accused.

5) Accordingly, the applicant - accused is directed to be released on probation of good conduct under Section 4 of the Probation of Offenders Act, upon execution of probation bond in sum of Rs.20,000/-, with one surety of like amount for a period of two (2) years.

6) It is hereby further directed that the applicant - accused shall receive the sentence as and when called upon till the said period and the applicant shall maintain peace during above mentioned period of two (2) years.

7) The above mentioned bond under Section 4 of the Probation of Offenders Act, be submitted before the learned trial Court within 15 days of passing of this judgment.

8) Accordingly, present revision application is disposed of. Record and proceedings, if any, be sent back to the concerned Court forthwith.