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2018 DIGILAW 499 (GUJ)

SONAL HARDIKBHAI THAKKAR v. STATE OF GUJARAT

2018-02-14

J.B.PARDIWALA

body2018
JUDGMENT AND ORDER : J.B. Pardiwala, J. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: "7(a) To pass an appropriate order, direction and/or writ to quash and set aside the award passed by learned the 10th Additional Session Judge, City Civil & Sessions Court [Lok Adalat], Ahmedabad dated 13/08/2016 passed in Criminal Appeal No: 186 of 2014 (Annexure-A) being illegal, unlawful, non-est and void ab-initio; (b) To pass an appropriate order, direction and/or writ declaring that the award passed by learned the 10th Additional Session Judge, City Civil & Sessions Court [Lok Adalat], Ahmedabad dated 13/08/2016 passed in Criminal Appeal No: 186 of 2014 (Annexure-A) is invalid, illegal, non-est and void ab-initio as obtained by playing fraud/misrepresentation; (c) To pass an appropriate order, direction and/or writ directing the City and Sessions Court, Ahmedabad to restore the Criminal Appeal No.186 of 2014 to its original file for further hearing and adjudication; (d) Pending admission and hearing of the petition, this Hon'ble Court may be pleased to direct the City and Sessions Court, Ahmedabad to take necessary action for cancelling the bail and/or to send Respondent No.2 in Judicial Custody for the interest of Justice & equity; (e) Ad-interim relief in para (d) may be granted; (f) Any such other and further orders may be passed in the interest of Justice and equity." 2. The writ-applicant herein is the original complainant. He lodged a complaint against the respondent No.2 for the offence punishable u/s. 138 of the Negotiable Instruments Act. The complaint was filed in the Court of the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Court No.30, Ahmedabad. The same came to be registered as the Criminal Case No. 291/2012. The trial Court convicted the respondent No.2 for the offence punishable under section 138 of the Negotiable Instruments Act. The respondent No.2 challenged the judgment and order of conviction before the City Civil and Sessions Court by filing the Criminal Appeal No. 186/2014. The Criminal Appeal No.186/2014 was put before the Lok Adalat for the purpose of settlement, on 30.08.2016. The Additional Sessions Judge, City Civil and Sessions Court, Court No.10, Lok Adalat, Ahmedabad, passed the following order: ORDER BELOW EXH.1 : "Today, both the parties remained present before the Lok Adalat. The Criminal Appeal No.186/2014 was put before the Lok Adalat for the purpose of settlement, on 30.08.2016. The Additional Sessions Judge, City Civil and Sessions Court, Court No.10, Lok Adalat, Ahmedabad, passed the following order: ORDER BELOW EXH.1 : "Today, both the parties remained present before the Lok Adalat. The parties have prayed for the compounding of the offence as contemplated by Section 147 of the said Act as the appellant and the respondent No.2 have arrived at a settlement and contents of the compromise purshish have been accepted by both the parties. Hence, in view of the nature of the offence in question and the fact that the complainant and accused have already entered into compromise, the Court thinks it proper to grant permission in facts and circumstances of the present case to compound. Hence, the following order is passed: ORDER (1) The present Criminal Appeal is hereby ordered to be allowed and disposed of subject to the appellant will have to pay Rs.12,50,000/- within one year from the date of this order to the respondent no.2 and within a three months from the release of the appellant, appellant has to further pay Rs.50,000/- to the respondent no.2. If the appellant fails to comply with the terms and conditions of the compromise purshish and fails to pay the amount as agreed by the parties in the compromise purshish, then the respondent no.2 can initiate appropriate proceedings against the appellant. (2) Compromise purshish which was filed by the parties is recorded. The appellant is hereby ordered to be acquitted under section 320(8) of the Criminal Procedure Code read with Section 147 of the Negotiable Instruments Act from the offence punishable under Section 138 of Negotiable Instrument Act and judgment and order dated 11.04.2014 passed by the Learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act Court No.30, Ahmedabad in Criminal Case No.291/2012 is hereby ordered to be quashed and set aside. (3) The fine and/or deposit, if any, deposited by the accused before the Court, be paid to the appellant after making due verification accordingly. (4) The order be intimated to learned Metropolitan Magistrate Court, Ahmedabad. Record and proceedings be sent back. (5) Necessary Yadi be sent to the Jail authority for releasing the appellant as per Rules. Pronounced in open court on this 13th day of August, 2016." 3. (4) The order be intimated to learned Metropolitan Magistrate Court, Ahmedabad. Record and proceedings be sent back. (5) Necessary Yadi be sent to the Jail authority for releasing the appellant as per Rules. Pronounced in open court on this 13th day of August, 2016." 3. It appears that the respondent No.2 did not pay a single penny. The Court below clarified that if the appellant failed to comply with the terms and conditions of the compromise pursis and pay the amount as agreed by the parties, then it would be open for the respondent No.2 to initiate the appropriate proceedings against the appellant i.e. the respondent No.2 herein. 4. On 29.01.2018, the following order was passed by this Court: "Let notice be issued to the respondents, returnable on 14th February 2018. The learned APP waives service of notice for and on behalf of the respondent no.1 State of Gujarat. Direct service to the respondent no.2. On the returnable date, notify the matter on top of the board." 5. Although the respondent No.2 has been served with the notice issued by this Court, yet has chosen not to remain present before this Court either in person or through an advocate and oppose this application. The case, prima facie, appears to be outright of fraud. 6. The Registry is directed to issue a non-bailable warrant of arrest of the respondent No.2, to be served through the Isanpur Police Station, Ahmedabad making it returnable within two weeks. The respondent No.2 shall be produced before this Court on the warrant being executed. Direct service is permitted.