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2019 DIGILAW 493 (GUJ)

UMESH DAYARAM MAKWANA v. TEJASH JASWANTLAL SHAH

2019-04-30

V.P.PATEL

body2019
JUDGMENT : 1. The present revision application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) and under the provisions of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act”) by the applicant being aggrieved and dissatisfied with the judgment and order dated 30.01.2018 passed by the learned Sessions Judge, Surendranagar in Criminal Appeal No.16 of 2016, confirming the judgment and order dated 28.03.2016 passed by the learned 2nd Additional Judicial Magistrate First Class , Surendranagar in Criminal Case No.906 of 2014. 2. Rule. Learned advocate Ms. Aakansha Mishra for Ms. Muskan A. Gogia waives service of rule on behalf of the opponent No.1-original complainant and Ms. C.M. Shah, learned Additional Public Prosecutor waives service of rule on behalf of the opponent No.2-State of Gujarat. 3. Considering the issue involved in the present case, offence in considering being compoundable and with the consent of the learned advocate appearing for the respective parties, as well as considering the fact that the dispute amongst the applicant and respondent-complainant has been resolved amicably, this application is taken up for final disposal forthwith. 4. Brief facts of the case is as under : 4.1 That the applicant had applied for a loan of Rs.2,00,000/- with the respondent bank and the said loan amount came to be approved to the applicant on 22.04.2009, that, after getting the said amount by way of regular installments but the applicant had failed in paying the said installments and therefore, the officers of the respondent bank continuously demanded the said amount. That, on 15.03.2014 applicant had issued a cheque of amount of Rs.1,62,000/- towards the part payment of the said loan. 4.2 That on 26.03.2014 respondent bank represented the said cheque for clearance, but it came to be returned on the same day with an endorsement “insufficient fund”. That, on 29.03.2014 respondent issued a legal notice under Section 138 of the Negotiable Instrument Act, 1881 to the applicant by Registered Post Ad. and the same was served but the applicant had failed to file any reply. 4.3 That the said case was tried by the learned J.M.F.C. and judgment came to be delivered on 28.03.2016, wherein the applicant was sentenced with an imprisonment of one year and further, was directed to pay an amount of Rs.1,00,000/- to the respondent towards compensation. 5. and the same was served but the applicant had failed to file any reply. 4.3 That the said case was tried by the learned J.M.F.C. and judgment came to be delivered on 28.03.2016, wherein the applicant was sentenced with an imprisonment of one year and further, was directed to pay an amount of Rs.1,00,000/- to the respondent towards compensation. 5. Being aggrieved and dissatisfied by the said judgment and orders dated 30.01.2018, the present applicant had preferred Criminal Appeal No.16 of 2016 before the Appellate Court, wherein the learned Sessions Judge, Surendranagar had vide his judgment and order dated 30.01.2018 dismissed the appeal preferred by the present applicant and confirmed the judgment and order of conviction and sentence dated 28.03.2016 passed by the learned J.M.F.C., Surendranagar in Criminal Case No.906 of 2014. Hence, the present criminal revision application is filed by the applicant challenging the aforesaid judgment and order. Submissions of the parties :- 6. Heard learned advocate Mr. Maharshi Patel for H. L. Patel Advocates for the applicant, learned advocate Ms. Aakansha Mishtra for Ms.Muskan A. Gogia, learned advocate for the respondent No.1-original complainant and learned Additional Public Prosecutor Ms. C.M. Shah for respondent No.2-State of Gujarat. 6.1 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-accused and would amount to abuse of process of law. 6.2 Learned advocate Ms. Aakansha Mishra for Ms. Muskan Gogia, learned advocate for the respondent No.1-complainant is present, she submitted that in the letter dated 15.04.2019 written by the Rajkot Nagrik Sahkari Bank. It is stated that the loan accounts are closed and therefore, requested to do needful in the subject matter of Criminal Revision Application No.137 of 2018. She has also produced the statement of account wherein it is stated that the loan is fully paid with the interest on 24.12.2018 and account is closed. She request both the documents be taken on record. Permission is granted. Documents are taken on record. 6.3 Ms. Aakansha Mishra, learned advocate for the respondent No.1-the original complainant has submitted that she has received the copy of the affidavit. She has gone through the same. She request both the documents be taken on record. Permission is granted. Documents are taken on record. 6.3 Ms. Aakansha Mishra, learned advocate for the respondent No.1-the original complainant has submitted that she has received the copy of the affidavit. She has gone through the same. She has further submitted that on instructions of the respondent No.1, she has no objection if the offence is compounded and the present application is allowed. 6.4 Learned Additional Public Prosecutor for the respondent-State has submitted that considering the offence being compoundable and for maintaining harmonious relations between the parties and considering the fact and circumstances of the case, just and equitable orders may be passed. Merits of the case :- 7. Mr. Maharshi Patel, learned advocate for the applicant has produced affidavit dated 30.04.2019 affirmed by the present applicant along with the letter dated 15.04.2019 wrote by the original complainant-Bank. Applicant-accused and original complainant both are present before the Court. They were identified and admits the contents of the affidavits. 8. This Court has considered the contents of the affidavit, documentary evidence filed on behalf the applicant-accused and original complainant. On inquiry made by this Court, both the parties have declared before this Court that the dispute between the applicant-accused and original complainant is resolved and, therefore, now the grievance stands redressed. 9. Keeping mind the nature of disputes between the parties which are all of private nature, this Court is of the opinion that the matter requires consideration. It appears that further continuance of the proceedings pursuant to the impugned judgment and order would amount to abuse of process of law and hence, to secure the ends of justice, the impugned judgment and order is required to be quashed and set aside. 10. So far as the question of depositing the cost is concerned, this Court has considered the direction issued by the Hon'ble Supreme Court in case of Damodar S. Prabhu ( AIR 2010 SC 1907 ), 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 10.1 Learned advocate Mr. Maharshi Patel has also tendered Affidavit in support of the petition dated 30.04.2019 affirmed by the present applicant-Umesh Dayaram Makwana stating on oath that he has repaid the dues to the respondent No.1 and now the respondent No.1 has no claims to recover from him. He has responsibility to main his family i.e. his wife, son and a daughter and he belongs to the low strata of the society and doing labour work and with great hardship he has been able to pay the said amount and therefore, his case may be considered on basis of the settlement. 10.2 Learned advocate Mr. Maharshi Patel has requested to take the said affidavit on record and requested this Hon'ble Court to allow the present application in view of the affidavit dated 30.04.2019 affirmed by the applicant. 11. Considering the facts and circumstances of the case, nature of transaction between the parties, financial condition of the applicant-accused, arguments advanced by learned advocates for the parties, this Court is of the view that it would be appropriate to direct the applicant to deposit 7.5% amount towards dishonour of the cheque is deposited before the High Court Legal Services Committee towards cost as per the decision in the case of Damodar S. Prabhu (Supra). 12. Resultantly, this application is allowed and the impugned judgment and order dated 30.01.2018, passed by the learned Sessions Judge, Surendranagar and judgment and order dated 28.03.2016 passed by the learned J.M.F.C., Surendranagar in Criminal Case No.906 of 2014 are hereby quashed and set aside. 13. The applicant-accused is directed to deposit 7.5% of the cheque amount before the High Court Legal Services Committee within three weeks from today. If the said amount is not deposited within a stipulated time, the Registry shall place the mater before this Court for passing appropriate orders for recovery of the amount of cost. 14. 13. The applicant-accused is directed to deposit 7.5% of the cheque amount before the High Court Legal Services Committee within three weeks from today. If the said amount is not deposited within a stipulated time, the Registry shall place the mater before this Court for passing appropriate orders for recovery of the amount of cost. 14. The Registry of this Court is directed to disburse the amount if already deposited by the present applicant-accused in favour of the respondent No.1-original complainant by account payee cheque in accordance with the procedure and after due verification. Rule is made absolute to the aforesaid extent. Direct service is permitted.