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Gujarat High Court · body

2015 DIGILAW 1253 (GUJ)

Mukeshkumar Babulal Patel v. State of Gujarat

2015-12-07

R.P.DHOLARIA

body2015
JUDGMENT : R.P. Dholaria, J. The revisionist is the original complainant who has alleged that he had loaned an amount of Rs. 15,000/- to the respondent No. 2 as they were having business relations and it was granted subject to repayment within a period of one month. As the respondent No. 2 herein failed to repay the amount within stipulated period, therefore, a demand was made by the revisionist and the respondent No. 2 issued a cheque for an amount of Rs. 15,000/- drawn on Ahmedabad District Co-op. Bank, Sarkhej Branch, dated 25.05.1999. Upon depositing the aforesaid cheque in his bank account, the same was returned with endorsement of 'insufficient fund' and therefore, he issued a legal notice through an advocate on 01.06.1999. In spite of receipt of the aforesaid legal notice, the respondent No. 2 did not repay the aforesaid amount. Therefore, he filed a complaint before the learned Judicial Magistrate First Class, Himatnagar being Criminal Case No.1930 of 1999. The said complaint, after conclusion of trial and hearing came to be disposed of convicting the respondent No. 2 for 6 months and fine of Rs. 1,000/-. 2. Respondent No. 2 being aggrieved and dissatisfied with the said judgment and order of the learned Magistrate, preferred Criminal Appeal No. 25 of 2006 under Section 374 of the Criminal Procedure Code, 1973 before the District and Sessions Court Sabarkantha at Himatnagar. The learned 2nd Additional Sessions Judge, Sabarkantha at Himatnagar by the impugned judgment and order dated 30.06.2007 set aside the judgment and order of the learned Judicial Magistrate First Class, Himatnagar and acquitted respondent No.2. The revisionist-original complainant has challenged this judgment and order in the present revision application. 3. This Court has heard learned advocate, Mr. Aamir Pathan for learned advocate, Mr. Ashish M. Dagli for the petitioner and learned APP, Mr. L.R. Pujari for respondent No. 1 and learned advocate, Mr. Mitesh R. Amin for respondent No. 2. 4. The revisionist-original complainant has challenged this judgment and order in the present revision application. 3. This Court has heard learned advocate, Mr. Aamir Pathan for learned advocate, Mr. Ashish M. Dagli for the petitioner and learned APP, Mr. L.R. Pujari for respondent No. 1 and learned advocate, Mr. Mitesh R. Amin for respondent No. 2. 4. The learned advocate for the revisionist has contended that the findings recorded by the learned Additional Sessions Judge is unjust and improper; that the learned Additional Sessions Judge appears to have given more weightage to compromise at Exh.62, wherein some golden articles were handed over to the original complainant though the amount remains unpaid and ultimately, he has prayed to quash and set aside the impugned judgment rendered by the Additional Sessions Judge in Criminal Appeal No. 25 of 2006 and to restore the judgment of learned Magistrate convicting the respondent No. 2. 5. This Court has thoughtfully considering the rival submissions came to be made and also perused the judgment rendered by the learned Magistrate in Criminal Case No. 1930 of 1999 as well as the judgment rendered by the Additional Sessions Judge in Criminal Appeal No. 25 of 2006. 6. On going through the judgments, one thing is clear that while recording statement under Section 313 of the Code of Criminal Procedure, the present respondent No. 2 pleaded that on 30.03.2000 when non-bailable warrant was issued against him at that time he entered into a settlement with the original-complainant by handing over two gold rings and one gold chain weighing 3 tolas. The aforesaid ornaments were handed over with a clear understanding that the respondent No. 2 original-accused is required to repay the loan amount on 04.04.2000 and upon doing so, the original complainant will return the aforesaid golden ornaments to the original accused. The aforesaid settlement was arrived at between the parties and the same was tendered before the learned Magistrate vide Exh. 62. It appears that the learned Judicial Magistrate failed to consider and appreciate the aforesaid compromise pursis as well as defence raised by the original-accused in his statement under Section 313 recorded after the conclusion of trial and ultimately he came to be convicted. 7. While considering the Criminal Appeal, the learned Additional Session Judge in its judgment in paras 15 and 16 has narrated as under: "15... 7. While considering the Criminal Appeal, the learned Additional Session Judge in its judgment in paras 15 and 16 has narrated as under: "15... Even if, I ignore the said technical defence regarding authority to file complaint then also there appears settlement writing produced vide Exh. 62 where under accused entrusted his golden ornaments three in numbers about three tolas and accused had undertaken to pay the amount of complaint on April, 4th, 2000 and on such payment said golden ornaments were to be returned by the complainant to the accused. It is true that even on April, 4th, 2000 accused failed to pay up the amount of complaint and therefore said golden ornaments are still with the complainant which are more then worth of Rs. 15,000/- and at present golden ornaments about three tolas are about more than worth of Rs. 25,000/-. Thus, the amount of disputed cheque for Rs. 15,000/- appears to have been recovered. Moreover, complainant had given undertaking to return the said golden ornaments on payment of disputed cheque amount. 16... It is to be noted that accused has deposited the amount for Rs. 15,000/- vide pursis Exh. 23 of disputed cheque before this Appellate Court. Therefore, the L.A. for the accused has prayed to upset the conviction judgment and sentence." 8. The learned advocate, Mr. Aamir Pathan for the revisionist contended that whenever the learned Additional Sessions Judge has considered the compromise pursis tendered by the respondent No.2 and in pursuance of the compromise, the original accused respondent No.2 deposited the impugned amount vide pursis at Exh. 23 before the Appellate Court, the same could have been paid to the original-complainant and could have made the order of return of golden ornaments to the respondent No. 2. Instead of doing so, the learned Judge has directed that the original-accused is at liberty to withdraw the deposited amount coupled with further direction to initiate civil proceeding to recover the gold ornaments entrusted by him to the original-complainant. 9. The arguments advanced by learned advocate, Mr. Aamir Pathan appears to be in consonance with the law as well as in consonance with the compromise entered into between the parties on 30.03.2000. 9. The arguments advanced by learned advocate, Mr. Aamir Pathan appears to be in consonance with the law as well as in consonance with the compromise entered into between the parties on 30.03.2000. In pursuance of the compromise, the respondent No. 2-original accused has deposited the amount, which ought to have been paid to the complainant and the gold ornaments entrusted as a security to the original-complainant ought to have been returned to the original-accused. Instead doing so, the learned Additional Sessions Judge has directed to initiate civil proceedings. 10. In view of the matter, it appears just and proper to dispose of the present Revision Application with a direction that the respondent No. 2-original accused shall pay the impugned amount to the original complainant within a period of one month from the receipt of this order and in turn the original complainant shall hand over two gold rings and one gold chain weighing 3 tolas, as narrated above, to the respondent No. 2-original accused. 11. With the aforesaid directions and observations, this Revision Application stands disposed of. R & P be sent back to the trial court forthwith. Direct service is permitted. Revision Application disposed of.