Ilesh Dharshrathbhai Chauhan vs State Of Gujarat

B.N. Karia, J

By way of present application, the applicant has challenged the judgment and order dated 4th May 2019 passed by the learned Additional Chief Metropolitan Magistrate (NI Act), Court No.30, Ahmedabad in Criminal Case No. 4455 of 2017 as well as judgment and order dated 9th December 2019 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Court No. 10, Ahmedabad in Criminal Appeal No. 455 of 2019.

The facts of the present case are summarized as under:

That, the original complainant and applicant-accused were old friends and knowing to each other very well and as the applicant-accused had a need of Rs. 4 lacs thus, complainant had given Rs. 5,51,000/- to the applicant-accused and while demanding such amount back by the complainant, the accused issued a cheque No. 626957 dated 24.08.2016 of Rs. 5,51,000/- of Bank of India, Narayannagar Branch and on 26.08.2016,, the complainant deposited the said cheque to Canara Bank, Paldi Branch, Ahmedabad, but the said cheque was returned with an endorsement of "funds insufficient" on 29.08.2016, and thereafter, the original complainant-respondent no.2 issued a notice and sent it to the applicant-accused on 02.09.2016 through registered A.D.and the notice has been served to the applicant-accused but the applicant-accused gave frivolous reply on 16.09.2016 and not paid the amount, and thus, the complaint was lodged thereof and same has been registered as Criminal Case No.4455 of 2017 and in the said case, the applicant was sentenced. Thereafter, the applicant approached the learned Sessions Court but, vide judgment and order dated 09.12.2019, learned Additional Sessions Judge, City Civil and Sessions Court, Court No.10, Ahmedabad in Criminal Appeal No. 455 of 2019, confirmed the sentence imposed upon the present applicant.

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

Today, when the matter was taken up for hearing, a joint request was made by learned advocates for the respective parties that dispute between the parties is settled amicably. That, dispute was settled by the complainant by accepting Rs. 2,50,000/-. The complainant himself is present before the court and he is identified by learned advocate for the respondent no.2. He also confirms that Rs. 2,50,000/- has been received by him from the applicant-accused and in this regard, the respondent no.2 has filed his affidavit. Affidavit filed by the respondent no.2 as well as zerox copy of his Aadhar Card are taken on record.

Learned APP for the respondent State has requested to pass necessary order in this matter.

Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State and considering the facts of the affidavit filed by the respondent no.2, it appears that the dispute is settled amicably between the parties and respondent no.2-original complainant has received Rs. 2,50,000/- from the accused-applicant.

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."

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 judgment and order dated 4th May 2019 passed by the learned Additional Chief Metropolitan Magistrate (NI Act), Court No.30, Ahmedabad in Criminal Case No. 4455 of 2017 as well as judgment and order dated 9th December 2019 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Court No. 10, Ahmedabad in Criminal Appeal No. 455 of 2019 stand quashed and set aside. The applicant-accused is acquitted of the charge under Section 138 of the Negotiable Instruments Act.

Rule is made absolute to the aforesaid extent.