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2011 DIGILAW 780 (GUJ)

State of Gujarat v. Tushar Shantilal

2011-11-21

M.D.SHAH

body2011
Judgment M.D. Shah, J.—Both Criminal Appeal No. 16 of 1994 by the appellant-State under Section 378 of the Code of Criminal Procedure and Criminal Revision Application No. 33 of 1994 by the petitioner-original complainant under Section 397 read with Section 401 of the Code of Criminal Procedure arise out of judgment and order dated 1-10-1993 passed by the learned Metropolitan Magistrate, Court No. 9, Ahmedabad, in Criminal Case No. 224 of 1992 whereby respondents-original accused were acquitted of the charges levelled against them. 2. The facts in nutshell are that a private complaint was filed in the Court of learned Metropolitan Magistrate, Court No. 9, Ahmedabad, against the Respondents Nos. 1 to 3-original accused and two others by M/s Cera Leasing Finance and Industries Ltd. which is giving advances to institutions and co-operative and credit societies for purchase of electrical and electronic items for their employees, for the offences punishable under Sections 409, 420, 467, 471 read with Section 34 and 114 of IPC alleging inter alia that the respondents accused after availing the advances from the complainant in the form of bill of exchange and other negotiable instruments, repaid only credit amount but failed to repay the entire amount. The said complaint was sent for investigation under Section 156(3) of Cr.P.C. to Navrangpura Police Station. Upon completion of investigation, a charge sheet was filed by the police against the Respondent Nos. 1 to 3 and one Shantilal M.Kothari, who has now expired and case was numbered as Criminal Case No. 2040 of 1992. Upon conclusion of trial, the all the accused were acquitted of the charges levelled against them vide judgment and order dated 1-10-1993 passed by the learned Metropolitan Magistrate, Court No. 9, Ahmedabad, in Criminal Case No. 224 of 1992, giving rise to the present appeal by the State and revision by the original complainant. 3. Heard learned advocate, Mr. Vijay H. Patel for the original accused, learned APP, Mr. L.R. Pujari for the State and learned advocate, Mr. Nitin M. Amin for the original complainant. 4. The learned advocates for the respective parties have jointly submitted that the matter is settled between the parties and a compromise pursis signed by the authorized signatory of the original complainant M/s Cera Leasing Finance & Industries Ltd (now Madhusudan Fiscal Limited) submitted before the Court is ordered to be taken on record. 5. 4. The learned advocates for the respective parties have jointly submitted that the matter is settled between the parties and a compromise pursis signed by the authorized signatory of the original complainant M/s Cera Leasing Finance & Industries Ltd (now Madhusudan Fiscal Limited) submitted before the Court is ordered to be taken on record. 5. Even otherwise, it is clear that there is nothing on record to show that the present accused have forged any document of the Company nor have they used those documents to take benefit. 6. However, the parties have settled the matter by arriving at a compromise and a compromise pursis is also placed on record. Reliance is placed on a decision of the Apex Court reported in AIR 2005 Supreme Court 757 in the case of Mohd. Shamim vs. Nahid Begum wherein it has been held by the Apex Court in Paragraph Nos. 12, 13, 14 and 15 as under: “12. In view of the fact that the settlement was arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge, we are of the opinion, the contention of the First Respondent herein to the effect that she was not aware of the contents thereof and the said agreement as also the affidavit which were got signed by her by misrepresentation of facts must be rejected. In the facts and circumstances of this case, we have no doubt in our mind that the denial of execution of the said deed of settlement is an afterthought on the part of the Respondent No. 1 herein. 13. Ex facie the settlement between the parties appears to be genuine. If the contention of the First Respondent herein is to be accepted, she would not have accepted the sum of Rs. 2,25,000/- and in any event, she could have filed an appropriate application in that behalf before the Court of S.N. Gupta, Additional Sessions Judge, Delhi. What was least expected of her was that she would return the said sum of Rupees 2,25,000/- to the Appellants herein. 14. Section 406 is a compoundable offence with the permission of the Court. It is true that Section 498-A IPC is not compoundable. 15. This Court in Ruchi Agarwal vs. Amit Kumar Agrawal and others, ( 2004 (8) Supreme 525 ), in almost a similar situation has quashed a criminal proceeding against the husband, stating: “... 14. Section 406 is a compoundable offence with the permission of the Court. It is true that Section 498-A IPC is not compoundable. 15. This Court in Ruchi Agarwal vs. Amit Kumar Agrawal and others, ( 2004 (8) Supreme 525 ), in almost a similar situation has quashed a criminal proceeding against the husband, stating: “... Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents. 8. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the Court if the criminal proceedings from which this appeal arises is allowed to continue..” 16. In view of the conduct of the First Respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the Appellants, in our opinion, in this case also, would be an abuse of the process of the Court. The Appellant No. 1, however, would be entitled to withdraw the sum of Rs. 50,000/- which has been deposited in the Court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the impugned judgment be set aside. The First Information Report lodged against the Appellants is quashed. The Appeal is allowed. However, this order should not be treated as a precedent.” 7. Applying the above ratio to the facts of the present case, since the compromise is entered into between the parties, this Court is of the opinion that both the appeal and the revision are required to be dismissed. However, learned advocate for the original complainant, Mr. Nitin M. Amin sought permission to withdraw Criminal Revision Application. 8. Thus, Criminal Appeal is dismissed. Criminal Revision Application is dismissed as withdrawn. The parties shall act as per the compromise pursis. 9. Records and proceedings be sent back forthwith. P P P P P