Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 175 (GUJ)

Sumermal Ghevarchand Shah v. State of Gujarat

2016-01-22

A.G.URAIZEE

body2016
JUDGMENT : A.G. Uraizee, J. The applicant has challenged the judgment and order dated 8.8.2014 passed by the learned Additional Chief Judicial Magistrate, Deesa in Criminal case no. 83 of 2009 whereby the applicant is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and is directed to suffer simple imprisonment for nine months and to pay fine of Rs. 3 lakhs, in default, simple imprisonment for two months. A sum of Rs. 2,75,000/is ordered to be paid to respondent no.2 as compensation. This order of the learned Additional Chief Judicial Magistrate, Deesa is confirmed in Appeal by the learned 7th (Ad hoc)Additional District and Sessions Judge, Deesa by his judgment and order dated 28.12.2015 passed in Criminal Appeal No. 18 of 2014. 2. The facts giving rise to the present petition are that respondent no.2 is running a medical store at Deesa who developed friendly relations with the applicant due to his frequent visits to the medical store. According to respondent no.2, the applicant was facing financial hardship and to tide over the financial hardship, took a hand loan of Rs. 2,50,000/from the respondent no.2 and promised to return it as early as possible. The applicant gave cheque no.063914 dated 25.9.2008 to respondent no.2 for repayment of the hand loan taken by him. On being presented for encashment, the bankers of respondent no.2 returned the cheque for want of sufficient funds. A notice as required under Section 138 of Negotiable Instruments Act was given by respondent no.2. The applicant did not make the payment of the cheque amount in compliance of the notice and therefore, respondent no.2 filed a Criminal case being Criminal case no. 83 of 2009 under Section 138 of the Negotiable Instruments Act against the applicant. The trial of the criminal case culminated into conviction of the applicant. The conviction was challenged before the learned Sessions Judge by way of filing Criminal Appeal No. 18 of 2014. The Appeal came to be dismissed and therefore, the applicant is before this Court by way of the present Revision Application to challenge the judgments and orders of the Courts below. 3. I have heard Mr. Ankit Y. Bachani, learned advocate for the applicant and Mr. N.J. Shah, learned Additional Public Prosecutor and Mr. Vaibhav Sheth, learned advocate for respondent no.2. 4. 3. I have heard Mr. Ankit Y. Bachani, learned advocate for the applicant and Mr. N.J. Shah, learned Additional Public Prosecutor and Mr. Vaibhav Sheth, learned advocate for respondent no.2. 4. It is not necessary to go into the details of the merits of the case as during pendency of this Revision Application, the applicant and respondent no. 2 have settled their dispute outside the Court. Respondent no.2 Mukeshkumar Shantilal Pateloriginal complainant has submitted settlement affidavit dated 12.1.2016 which is taken on record. Paragraphs 3 and 5 which are relevant for the disposal of this Revision Application are produced as under: "3. It is humbly stated that presently, during pendency of matter, both applicant and complainant due to mutual understanding and consent, have entered into amicable settlement on their own volition and freewill without any coercion. After sorting out disputes and grievances against applicant, I do not want to prosecute any further proceedings in the said complaint and application. I myself willingly want to withdraw complaint lodged against present applicant. 4. That I say and submit that the complaint came to be lodged for dishonour of cheque under Section 138 of The Negotiable Instruments Act, 1881. Meanwhile, I and applicant had come to amicable settlement regarding money issues and presently, no dispute or any other conflict, prevail between us; as well as, same has been sorted out." 5. Considering the settlement of the dispute between the parties, i.e. between applicant and respondent no. 2, it is expedient to permit the parties to compound the criminal case at the revisional stage, thereby Revision Application needs to be allowed. 6. For the foregoing reasons, the Revision Application is hereby allowed. The judgment and order of conviction dated 8.8.2014 passed by the learned Additional Chief Judicial Magistrate, Deesa in Criminal case n. 83 of 2009 as confirmed in Appeal No. 18 of 2014 by the learned 7th (Ad hoc) Additional District and Sessions Judge, Deesa by his judgment dated 28.12.2015 are hereby quashed and set aside. The applicant is acquitted of the charges of offence punishable under Section 138 of the Negotiable Instruments Act. 7. Mr. Bachani, learned advocate for the applicant has stated that the applicant has deposited a sum of Rs. 3 lakhs in the Court of the learned Additional Chief Judicial Magistrate, Deesa vide receipt no. 101 dated 8.8.2014 which the trial Court may be directed to return to him. 7. Mr. Bachani, learned advocate for the applicant has stated that the applicant has deposited a sum of Rs. 3 lakhs in the Court of the learned Additional Chief Judicial Magistrate, Deesa vide receipt no. 101 dated 8.8.2014 which the trial Court may be directed to return to him. Mr. Sheth, learned advocate for respondent no.2 has no objection if the amount is returned to the applicant. Learned Additional Chief Judicial Magistrate, Deesa is therefore, directed to return a sum of Rs. 3 lakhs to the applicant by an account payee cheque after due verification. Rule made absolute.