Rameshbhai Kanjibhai Kapuriya vs State Of Gujarat

B.N. Karia, J

The notarized affidavit of the original complainant-respondent No. 2 is taken on record.

By way of present Criminal Revision Application, the applicant has challenged the order of conviction and sentence dated 8.8.2017 passed by learned 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 11362 of 2012 convicting the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I. Act") as well as order dated 26.4.2018 passed in Criminal Appeal No. 174 of 2017 by learned 14th Additional Sessions Judge, Rajkot wherein, the learned First appellate Court has been pleased to dismiss the said appeal and confirmed the judgment and order of conviction and sentence passed by the learned trial Court.

The facts of the present case are summarized as under:

2.1 The complainant-respondent No. 2 happens to know the applicant since past more than a decade and on account of the said friendship he entered into an transaction with the applicant with respect to a land bearing Revenue Survey No. 46/2 admeasuring about 3 acres & 22 gunthas situated at Rajkot. That, the above parcel of land was agreed to have been purchased by the applicant from one Shri Bharatsinh Jadeja. The respondent No. 2 has entered into transaction qua some portion of the land area admeasuring 600 sq. mtrs. The respondent no. 2 has paid an amount of Rs. 20,01,100/- to the applicant and the applicant was to execute sale deed in his favour. There were certain encumbrances and the sale deed could not be executed the applicant gave a cheque of Rs. 23,00,000/- to respondent No. 2 towards the amount paid by him as well as towards the expenses incurred. The said cheque was deposited in bank on 29.9.2012 and the same was dishonored with an endorsement "fund insufficient". A demand notice was sent by respondent No. 2 to the applicant on 5.10.2012 which was received by the applicant on 6.10.2012. The applicant gave evasive reply dated 20.10.2012 to the respondent No. 2 wherein, it was contended that the applicant has repaid the entire amount to the respondent No. 2 and agreement to that effect has been executed and the cheque in question was not on account of the transaction which is mentioned in the notice but it is with respect to purchase of Chevrolet car owned and possessed by respondent no. 2 which was to be purchased by the applicant and on account of which the applicant had given a cheque of Rs. 23,00,000/-. However, the car was not sold to the applicant by the respondent No. 2 and therefore, the respondent no. 2 has no authority to deposit the said cheque. Thereafter, the complaint was filed by the respondent No. 2-complainant under section 138 of the N.I. Act.

Today, respondent No. 2-Jatinbhai Jagdishbhai Dhandiya is present before this Court and he is identified by learned counsel for the respondent No. 2. Learned Counsel for the respondent No. 2 submits that the settlement is arrived at between the parties and the respondent No. 2-complainant has received an amount of Rs. 3,50,000/- from the applicant as full and final amount in connection with the cheque in dispute of this proceedings and no amount remains to be recovered by him from the applicant. Respondent No. 2 has no objection if this revision application is allowed by this court in view of settlement arrived at between them.

Affidavit on behalf of the respondent No. 2 is filed by Mr. Jatinbhai Jagdishbhai Dhandiya wherein, it is stated that as part of full and final settlement, he has been received an amount of Rs. 3,50,000/- and the matter has now been amicably settled and the settlement has been arrived for maintaining harmonious relations amongst them.

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 judgment and order challenged in the present revision application.

Learned APP has objected the arguments advanced by learned Counsels for the respective parties and submitted that after considering the evidence of the complainant as well as documentary evidence, a clear conviction was rightly held by both the Courts below which cannot be permitted to be disposed of the matters.

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)".

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, 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. 2 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 8.8.2017 passed by learned 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 11362 of 2012 as well as order dated 26.4.2018 passed in Criminal Appeal No. 174 of 2017 by learned 14th Additional Sessions Judge, Rajkot stand quashed and set aside. The applicant-accused is acquitted of the charge under Section 138 of the Negotiable Instruments Act provided he is not convicted in connection with any other offence.

Direct service is permitted.