Patel Rameshbhai Vithalbhai vs State Of Gujarat

,,,

V.P. Patel, J",,,

Heard learned Advocate Mr. Mehul Sharad Shah for the Applicant and learned APP Ms. Jirga Jhaveri for the Respondent â€" State of Gujarat.,,,

Order under Challenge:,,,

By way of this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter",,,

referred to as “the Cr.P.C.), the Applicant / Original Accused has prayed for quashing and setting aside the judgment and order dated 20.7.2004",,,

passed by the learned Additional Sessions Judge (4th Fast Track Court), Mahesand in Criminal Appeal No.10 of 1999 confirming the judgment and",,,

order dated 8.2.1999 passed by the learned J.M.F.C. Mahesana in Criminal Case No. 1337 of 1991 on the grounds stated in the memo of Application.,,,

The office had put a Note dated 8.1.2020 stating as under:,,,

“In this connection, it is respectfully submitted that, the above matter pertains to Against Conviction therefore, as per the present Roster, it is",,,

required to be placed befoe the Hon'ble Court (Coram: Honourable Mr. Dr. Justice Umesh A. Trivedi).,,,

However, the learned Advocate Mr. Mehul Sharad Shah is appearing on behalf of Applicant and as per the specific instructions given by His/",,,

Lordship, matter wherein Advocate Mr. Mehul Sharad Shah appears may not be placed before His Lordship / Ladyship, and hence the above matter",,,

is required to be placed before another Hon'ble Court.,,,

In view of the above Note this matter is placed befoe this court and it is taken up for final disposal.,,,

At the outset, it is submitted by learned Advocate for the Applicant that the parties have amicably resolved the issue and therefore, any further",,,

continuance of the proceedings pursuant to the impugned orders as well as any further proceedings arising therefrom would create hardship to the,,,

Applicant / Accused. It is submitted that the In Charge Manager, Mehsana District Co-operative Purchase and Sale Union Ltd. (hereinafter referred",,,

to as “the Unionâ€) has issued a certificate dated 8.12.2012 to that effect. That the present Applicant / Accused has filed affidavit as regards to,,,

the payment made to the Union. It is further argued that the offence under Section 408 of the Indian Penal Code (“IPC†for short) is a,,,

compoundable offence. That the amount is paid and the Union has no objection if any order is passed by this court.,,,

Learned APP Ms. Jirga Jhaveri appearing for the Respondent â€" State of Gujarat has submitted that considering the offence being compoundable,,,

and for maintaining the harmonious relations between the party and considering the facts and circumstances of the case, just and equitable order may",,,

be passed.,,,

Facts of the case:,,,

That the original complainant Kantilal Dalsukhram Raval, who is the Manager of the Union has filed a complaint against the present Applicant",,,

Accused before the Mahesana City Police Station, which was registered as I-Cr No. 314/1989 for the offence punishable under Section 408 IPC.",,,

After the investigation is conducted the Investigating Officer has filed charge sheet before the learned CJM, Mahesana. The said charge sheet was",,,

registered as Criminal Case No. 1337/1991.,,,

The prosecution has examined the witnesses and produced certain documents before the CJM. Thereafter the CJM has recorded further statement,,,

under Section 313 of Cr.P.C..,,,

After providing sufficient opportunity for the argument to the learned APP as well as learned Advocate for the Defence, the learned CJM has",,,

convicted the Applicant Accused under Section 248(2) for the offence punishable under Section 408 IPC and sentenced him to suffer RI for 2 years,,,

and in default to undergo SI for one year. The set off time already undergone is granted to the Applicant Accused.,,,

The Applicant Accused has preferred Criminal Appeal under Section 374 of Cr.P.C. before the learned Sessions Court, Mahesana. The same is",,,

registered as Criminal Appeal No.10/1999. Considering the record of the trial court, the learned Sessions Judge has come to the conclusion that the",,,

order passed by the learned CJM is legal and valid in the eye of law and hence the Appeal is required to be dismissed and the same was dismissed by,,,

the learned Additional Sessions Judge (4th Fast Track Court), Mahesana on 20.7.2004.",,,

Merits of the case:,,,

10.That the Applicant Accused has filed Affidavit dated 30.6.2016 which is at page 40 in the record. It is stated in paragraph 2 as under:,,,

“I state and submit that I have deposited the amount due to the Mehsana District Co- operative Purchase and Sale Union Ltd. and the,,,

Mehsana District Co-operative Purchase and Sale Union Ltd. has issued certificate dated 08.12.2012 certifying that amount due to them,,,

has been fully received by them and no further dues are left. Mehsana District Co-operative Purchase and sale Union Ltd. has further,,,

stated that they have no objection if Hon'ble Court passes appropriate order in this regards.â€​,,,

11.The certificate dated 8.12.2012 is attached at Annexure-A1. The original certificate is also produced. On perusing the said certificate, it is stated",,,

that the amount due towards Rameshbhai Vitthalbhai Patel, residence of Heduwa Rajgadh Taluka, District Mahesana has been fully received by the",,,

Union. No further dues are left. It is further stated that if the court take any decision in this regard, they have no objection.",,,

12.The Applicant Accused has also filed another Affidavit dated 11.1.2020 with some documentary evidence at page 42 to 48. On perusing the said,,,

documents, it is stated in paragraph 2 to 8 as under:",,,

“1. Earlier I filed additional affidavit and declared that I have paid the due amount to complainant and certificate dated 08/12/2012 was,,,

issued which was attached with the additional affidavit.,,,

I say and submit that complainant â€" Mahsana District Co-operative Purchase and Sale Union Ltd. has filed Lavad Suit No. 1692/90,,,

against me to recover the due amount. That after the ex-parte decree, Recovery Officer was appointed and public auction was held and",,,

amount was recovered from selling house and land. Thereafter receipt was issued on 19/01/2009 worth Rs.5,00,000/-. Annexex hereto and",,,

marked as Annexure R-1 Colly are copies of receipts.,,,

Sr.,Receipt No.,Date,Amount (Rs.)

1.,1145,19.1.2009,"46,000

2.,1146,19.1.2009,"1,19,000

3.,1147,19.1.2009,"84,000

4.,1148,19.1.2009,"2,51,000

,,Total,"5,00,000