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2012 DIGILAW 792 (GUJ)

Hasmukhbhai Mansukhbhai Rami v. State of Gujarat

2012-11-05

M.R.SHAH

body2012
ORDER : M. R. Shah, J. Rule. Mr.L.B. Dabhi, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 - State and Mr.Pinakin Raval, learned advocate waives the service of notice of rule on behalf of the respondent No.2 - original complainant. 2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present application is taken up for final hearing today. 3. Present application has been preferred by the applicant herein - original accused requesting to permit him to compound the offence for which he has been convicted for the offence under section 138 of the Negotiable Instruments Act. 4. That the applicant herein - original accused has been convicted by the learned Metropolitan Magistrate, Neotiable Instruments Act, Court No.8, Ahmedabad for the offence under section 138 of the Negotiable Instruments Act for dishonour of the cheque of Rs.80,000, while passing judgment and order of conviction and sentence in Criminal Case No. 893 of 2008, confirmed by the learned Additional City Sessions Judge, Court No.16, Ahmedabad in Criminal Appeal No.62 of 2012 as well as by this Court in Criminal Revision Application No. 437 of 2012 vide judgment and order dated 8/10/2012. 5. Thereafter parties have settled the dispute amicably and therefore, the parties request to permit them to compound the offence for which the applicant herein - original accused has been convicted for the offence under section 138 of the Negotiable Instruments Act and therefore, the applicant herein - original accused has preferred the present application requesting to permit him to compound the offence for which he has been convicted by the learned trial court confirmed by the learned appellate court as well as this Court. 6. Mr.Dagli, learned advocate appearing on behalf of the applicant - original accused has stated at the bar that against the cheque amount of Rs.80,000, under the compromise and settlement, applicant herein - original accused has deposited a sum of Rs.1 Lac with the registry of this Court, to be paid to the respondent No.2 herein - original complainant, towards the full and final settlement against the claim of the respondent No.2 - original complainant under the cheque in question which has been dishonoured and for which the applicant - original accused has been convicted. He has also stated at the bar that the applicant - original accused has also deposited 15% of the cheque amount i.e. Rs.12,000/- with the registry of this Court to be deposited with the Gujarat State Legal Services Authority, which the applicant - original accused is required to be deposited in view of the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu v. Sayed Babalal H., reported in (2010) 5 SCC 663 . He has also stated at the bar that the applicant - original accused has also deposited Rs.5,000/- towards the costs, as request is made by the applicant - original accused to permit him to compound the offence, after confirmation of the judgment and order of conviction and sentence, upto this Hon'ble Court. 7. Relying upon the decision of the learned Single Judge in the case of Kirpalsingh Pratapsingh Ori v. Salvinder Kaur Hardisingh Lobana, reported in 2004 (2) GLH 544 as well as unreported decision of this Court in Special Criminal Application No.1723 of 2009 and decision of the Kerala High Court in the case of Sabu George and etc. v. The Home Secretary, Department of Home Affairs, New Delhi and Another, reported in 2007 Criminal Law Journal 1865, it is requested by Mr.Dagli, learned advocate appearing on behalf of the applicant - original accused to permit the applicant - original accused to compound the offence for which he has been convicted for the offence under section 138 of the Negotiable Instruments Act. 8. Mr.Pinakin Raval, learned advocate appearing on behalf of the respondent No.2 - original complainant has submitted an Affidavit affirmed by the respondent No.2 - original complainant stating that on permitting the the respondent No.2 herein - original complainant to withdraw an amount of Rs.1 Lac which the applicant - original accused has deposited with the registry of this Court, the respondent No.2 - original complainant has no objection, if the applicant herein - original accused is permitted to compound the offence for which he has been convicted. 9. Mr.L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case and in view of the subsequent development and settlement between the parties and in view of the decisions relied upon by the learned advocate appearing on behalf of the applicant - original accused. 10. 9. Mr.L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case and in view of the subsequent development and settlement between the parties and in view of the decisions relied upon by the learned advocate appearing on behalf of the applicant - original accused. 10. Heard Mr.Dagli, learned advocate appearing on behalf of the applicant - original accused and Mr.Pinakin Raval, learned advocate appearing on behalf of the respondent No.2 - original complainant and Mr.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent No.1 - State. 11. As submitted hereinabove, now the parties have settled the dispute amicably and the applicant herein - original accused has deposited a total sum of Rs.1,17,000/- with the registry of this Court towards the cheque in question / settlement amount; 15% of the cheque amount to be deposited with the Gujarat State Legal Services Authority, which the applicant - original accused is required to be deposited in view of the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra) and Rs.5,000/- towards costs. It appears that against the cheque of Rs.80,000/-, applicant herein - original accused has agreed to pay Rs.1 Lac to the respondent No.2 - original complainant towards full and final settlement which the respondent No.2 - original complainant has agreed to accept. It is true that the request is made by the applicant - original accused to permit him to compound the offence, after the confirmation of the judgment and order of conviction and sentence by both the courts below as well as this Court in Criminal Revision Application No.437 of 2012. However, considering the fact that the offence under section 138 of the Negotiable Instruments Act is compoundable irrespective and/or notwithstanding any provision under the Code of Criminal Procedure, and as the parties have settled the dispute amicably and considering the decision of the learned Single Judge in the case of Kirpalsingh Pratapsingh Ori (supra) as well as unreported decision of this Court in Special Criminal Application No.1723 of 2009 (supra) and decision of the Kerala High Court in the case of Sabu George and etc. (supra), applicant herein - original accused can be permitted to compound the offence for which he has been convicted, even after disposal of the Criminal Revision Application. (supra), applicant herein - original accused can be permitted to compound the offence for which he has been convicted, even after disposal of the Criminal Revision Application. It is reported that the applicant - original accused has also deposited 15% of the cheque amount i.e. Rs.12,000/- with the Registry and hence registry is required to be directed to transmit the said amount with the Gujarat State Legal Services Authority. 12. In view of the above, present application is allowed. The applicant herein - original accused is permitted to compound the offence for which he has been convicted by the learned Metropolitan Magistrate, Neotiable Instruments Act, Court No.8, Ahmedabad for the offence under section 138 of the Negotiable Instruments Act for dishonour of the cheque of Rs.80,000/-, while passing judgment and order of conviction and sentence in Criminal Case No. 893 of 2008, confirmed by the learned Additional City Sessions Judge, Court No.16, Ahmedabad in Criminal Appeal No.62 of 2012 as well as by this Court in Criminal Revision Application No. 437 of 2012 vide judgment and order dated 8/10/2012. Consequently the applicant herein - original accused is now not required to undergo sentence imposed by the learned Metropolitan Magistrate, Neotiable Instruments Act, Court No.8, Ahmedabad in Criminal Case No. 893 of 2008, confirmed by the learned Additional City Sessions Judge, Court No.16, Ahmedabad in Criminal Appeal No.62 of 2012 as well as by this Court in Criminal Revision Application No. 437 of 2012 vide judgment and order dated 8/10/2012. Consequently, if the applicant herein - original accused is in jail he shall be released forthwith, if not required in any other case. Out of the amount of Rs.1,17,000/- deposited by the applicant herein - original accused, Registry is hereby directed to pay Rs.1,00,000/- (Rupees One Lac only) to the respondent No.2 herein - original complainant by Account Payee Cheque on proper verification and identification towards the settlement amount against the cheque in question which has been dishnoured for which the applicant has been convicted. Registry is further directed to transmit Rs.12,000/- (Rupees Twelve Thousand only) to the Gujarat State Legal Services Authority towards cost as per the decision of the Hon'ble Supreme Court in the case of Damodar S. Prabhu (supra). Furthermore, the Registry is directed to transmit Rs.5,000/- (Rupees Five Thousand only) Gujarat High Court Legal Services Committee. Rule is made absolute accordingly. Direct Service is permitted. Application Allowed.