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2019 DIGILAW 214 (GUJ)

PATEL VIRCHANDBHAI KODARBHAI v. STATE OF GUJARAT

2019-03-12

V.P.PATEL

body2019
JUDGMENT V P PATEL, J. 1. Heard learned advocate Mr. B. K. Raj for the applicant - original accused and learned advocate Mr. Dharmesh R. Patel for respondent Nos. 2.1, 2.2., 2.3 and 2.4, who are legal heirs of respondent No.2 - original complainant. Order under challenge 2. By way of this revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside judgment and order dated 29.02.2016 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No.107 of 2012 and order dated 21.12.2018 passed by learned Additional Sessions Judge,. Modasa in Criminal Appeal No.25 of 2016. 3. Considering the issue involved in the present case, offence in consideration being compoundable and with consent of the learned advocates appearing for the respective parties, as well as considering the fact that the dispute amongst the applicant and legal heirs of respondent No.2 has been resolved amicably, this application is taken up for final disposal forthwith. Submission of the parties 4. At the outset, it is submitted that the parties have amicably resolved the issue and therefore, any further continuance of the proceedings pursuant to the impugned orders as well as any further proceedings arising therefrom would create hardship to the applicant. It is submitted that applicant has agreed before the Mediator, High Court Mediation Centre that the dispute between the applicant and respondent No.2 is resolved due to intervention of Mediator. It is further submitted that in view of the fact that the dispute is resolved, any further continuance of the proceedings would amount to abuse of process of law. 4.1 It is further submitted by both the learned advocates that as per the settlement arrived at between the parties before the Mediation Centre, it was agreed to settle the dispute by payment of sum of Rs.2,25,000/-. Learned advocate Mr. Raj for the applicant has submitted that applicant has already deposited a sum of Rs.75,000/- before the trial Court as per the order dated 28.12.2018 by this Court. Xerox copy of receipt of such payment is to be taken on record. He has further submitted that remaining amount of Rs.1,50,000/- is also paid to the respondents on 08.03.2019. Copy of such receipt was taken on record on that day itself. 5. Learned Additional Public Prosecutor Ms. Xerox copy of receipt of such payment is to be taken on record. He has further submitted that remaining amount of Rs.1,50,000/- is also paid to the respondents on 08.03.2019. Copy of such receipt was taken on record on that day itself. 5. Learned Additional Public Prosecutor Ms. C. M. Shah appearing for the State has submitted that considering the offence being compoundable and for maintaining the harmonious relations between the party and considering the facts and circumstances of the case, just and equitable order may be passed. Merits of the case 6. Mediator of the High Court Mediation Centre has produced his report dated 15.02.2019 before this Court and it is to be taken on record. Respondent No.2 is present in person before the Court and also admits the contents of the Memorandum of Understanding. On inquiry made by the Court, legal heirs of respondent No.2 have declared before this Court that the dispute between the applicant and respondent No.2 is resolved due to intervention of mediator and, therefore, now the grievance stands redressed. 7. Having heard the learned advocates appearing for the respective parties, considering the facts and circumstances arising out of the present application as well as taking into consideration the decisions rendered in the cases of Gian Singh Vs. State of Punjab & Anr. reported in, (2012) 10 SCC 303 , Madan Mohan Abbot Vs. State of Punjab reported in, (2008) 4 SCC 582 , Nikhil Merchant Vs. Central Bureau of Investigation & Anr. reported in, (2009) 1 GLH 31 , Manoj Sharma Vs. State & Ors., reported in, (2009) 1 GLH 190 and Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in, (2014) 2 Crimes(SC) 67, it appears that further continuation of criminal proceedings in relation to the impugned orders against the applicant would be unnecessary harassment to the applicant. 8. I have also considered the latest decision of the Hon'ble Supreme Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others v. State of Gujarat, Criminal Appeal No.1723 of 2017 dated 4.10.2017 and the guidelines issued by the Hon'ble Supreme Court in the said decision, particularly paragraph 15. Considering the nature of disputes between the parties which are all private in nature, I am of the opinion that the matter requires consideration. 9. Considering the nature of disputes between the parties which are all private in nature, I am of the opinion that the matter requires consideration. 9. It appears that further continuance of the proceedings pursuant to the impugned judgments and orders would amount to abuse of process of law and hence, to secure the ends of justice, the impugned judgments and orders are required to be quashed and set aside. 10. This Court has considered the directions by the Hon'ble Supreme Court in case of Damodar S. Prabhu (supra), which are as under; "15(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs." "17. xxx xxx xxx Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Xxx xxx xxx" 11. As per para 1 of the judgment dated 29.02.2016 in Criminal Case No.107 of 2012, it is stated that the original complainant and the applicant - accused are doing transport business. They were friends. The applicant - original - accused has purchased a truck bearing No.GJ-1-8U-6377 belonging to the original complainant. The cheque of Rs.75,000/- was handed over by the applicant - accused to the original complainant. The amount was required to be paid as a down payment. It appears that the transaction is commercial transaction. The matter was sent to the Mediation Centre. The mediation tookplace between the parties and they have arrived at amicable settlement. The memorandum of understanding is produced with the report of mediator. It is on record. It is also reflected in memorandum of understanding that the original complainant has filed a Regular Civil Suit No.41 of 2014, which was decreed and thereafter execution petition was filed. Applicant - accused is agreed to pay Rs.1,50,000/- as per the settlement. The memorandum of understanding is produced with the report of mediator. It is on record. It is also reflected in memorandum of understanding that the original complainant has filed a Regular Civil Suit No.41 of 2014, which was decreed and thereafter execution petition was filed. Applicant - accused is agreed to pay Rs.1,50,000/- as per the settlement. Considering the commercial transaction between the parties this Court is of the view that there should not be any lenience in deciding the amount of cost to be paid as per the directions of the Honourable Supreme Court in case of Damodar S. Prabhu (supra). 12. As per para 4 of the memorandum of understanding, wherein it is stated that; "That out of the said amount of Rs.2,25,000/- (Rupees Two Lakhs Twenty Five Thousand Only), the parties agreed to permit respondent No.2/2 Patel Ripalvkumar Vinubhai to withdraw an amount of Rs.75,000/- (Rupees Seventy - Five Thousand only) deposited by the applicant before the Hon'ble Sessions Court at Modasa (District - Arvalli)" 12.1 In terms of such settlement, respondent No.2/2 is permitted to withdraw an amount of Rs.75,000/-. 13. Resultantly, this application is allowed and the impugned judgment and order dated 29.02.2016 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No.107 of 2012 and order dated 21.12.2018 passed by learned Additional Sessions Judge,. Modasa in Criminal Appeal No.25 of 2016 are hereby quashed and set aside qua the applicant. 13.1 The applicant - accused is directed to deposit 15% of the cheque amount before the High Court Legal Services Committee within two weeks from today. 13.2 The trial Court is directed to disburse the amount of Rs.75,000/-, which is already deposited by applicant - accused in favour of respondent No.2/2 by account payee cheque after due verification. Bail bond shall stand cancelled. Rule is made absolute to the aforesaid extent. 14. In view of the disposal of main revision application, Criminal Misc. Application does not survive and disposed of accordingly. Direct service is permitted.