Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 515 (GUJ)

GEETABEN PRABHAKAR KAVLANEKAR v. STATE OF GUJARAT

2019-05-01

V.P.PATEL

body2019
JUDGMENT : 1. The present revision applications are filed under Section 397 read with Section 401 of the Code of Criminal Procedure (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 judgments and orders dated 10/04/2018 passed by the learned 7th Additional Sessions Judge, Vadodara in Criminal Appeal No. 32 of 2017 and Criminal Appeal No. 31 of 2017 respectively, confirming the judgments and orders dated 04/01/2017 passed by the learned 3rd Additional Senior Civil Judge, Vaodara in Criminal Case No. 3249 of 1996 and Criminal Case No. 2028 of 1997, respectively. 2. Rule. Learned APP waives service of rule on behalf of the Opponent No. 1 – State and Mr.Pradip J. Patel, learned advocate waives service of rule for the Opponent No. 2 original complainant. 3. Considering the issue involved in the present case, offences in consideration 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 applications are taken up for final disposal forthwith. 4. Original transactions taken place between the parties for two different cheques and as original complainant has filed separate criminal cases for different cheques, the learned Trial Court as well as learned Appellate Court have decide both the matters by two separate judgments of even date. However, as facts and issue involved in both these applications, with consent of the learned advocates appearing for respective parties, this Court has decided to hear and decide both these applications by common judgment and order. Order under challenge : 5. Brief facts of the case is that the original complainant Shri Yugprabhav Cooperative Society Limited had through its Secretary Dineshbhai Sitaram Rana preferred Criminal Case No. 3249 of 1996 and Criminal Case No. 2028 of 1997 under the provisions of Section 138 of the N.I. Act, against accused (1) Prabhakar Bhausaheb Kavlanekar and (2) Smt. Geetaben Prabhakar Kavlanekar the present applicant. After hearing the case on merit, the learned 3rd Additional Senior Civil Judge, Vadodara has vide his judgments and orders dated 04/01/2017 passed in Criminal Case No. 3249 of 1996 and Criminal Case No. 2028 of 1997 respectively, acquitted the accused No. 1 – Prabhakar Bhausaheb Kavalnekar and convicted the accused No. 2 – Geetaben Prabhakar Kavalenkar – the present applicant and imposed sentence of one year simple imprisonment and fine of Rs.5000/- (Rupees Five Thousand Only) and in default to undergo simple imprisonment for further one month. 5.1. Being aggrieved and dissatisfied with the said judgments and orders dated 04/01/2017, the present applicant had preferred Criminal Appeal No. 32 of 2017 and Criminal Appeal No. 31 of 2017 respectively, before the Appellate Court, wherein the learned 7th Additional Sessions Judge, Vadodara had vide his judgments and orders dated 10/04/2018 dismissed the appeals preferred by the present applicant and confirmed the judgments and orders of conviction and sentence dated 04/01/2017 passed by the learned 3rd Additional Senior Civil Judge, Vadodara in Criminal Case No. 3249 of 1996 and Criminal Case No. 2028 of 1997 respectively. Hence, the present criminal revision applications filed by the applicant challenging the aforesaid judgments and orders. Submission of the parties : 6. Heard learned advocate Mr.P.P. Majmudar for learned advocate Mr. Vipul B.Sundesha for the applicant, learned advocate Mr.Pradip J. Patel for the respondent No.2 original complainant and learned APP Ms. C.M. Shah for respondent No.1 State. 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 Mr. P.P.Majmudar, has submitted that pursuant to the order dated 23/04/2018 passed by the coordinate-bench of this Court (Coram : Hon'ble Mr.Justice G.R.Udhwani, J.) on 24/04/2018, the applicant has deposited the amount of Rs.1,66,514/- (Rupees One Lakh Sixty Six Thousand Five Hundred Fourteen Only) and an amount of Rs.5,58,666/- (Rupees Five Lakh Fifty Eight Thousand Six Hundred Sixty Six only) before the Registry of this High Court. Mr.Majmudar has also tendered a further affidavit dated 11th day of March, 2019 affirmed by the present applicant – Geetaben Prabhakr Kavlanekar stating on oath that the bank issued letter dated 04/09/2018 stating that when bank will receive amount which she deposited before this Hon'ble Court on 24/04/2018 Rs.5,58,666/- and an amount of Rs.1,66,514/- with the registry of this Court, thereafter they will issue no due certificate and release the file of the original documents of immovable property of the present applicant. Along with affidavit, the applicant has also annexed copy of letter dated 04/09/2018 issued by Shree Yugprabhav Shakari Mandali Limited. 6.3. Learned Advocate Mr.Majmudar has requested to take the said affidavit on record and further submitted that as per the letter dated 04/09/2018 of the Society, the original Complainant society is ready and willing to compound the offence under Section 138 of the Negotiable Instrument Act, and the society has no objection if the accused are released. Mr.Majmudar, Learned Advocate for the applicant for the applicant has therefore requested this Hon'ble Court to allow the present applications in view of the affidavit dated 11/3/2019 affirmed by the applicant and letter dated 04/09/2018 of the original complainant-society. 6.4. Mr.Pradip J. Patel, learned Advocate for the respondent No. 2 – the original Complainant – society has submitted that he has received the copy of affidavit along with letter dated 04/09/2018 of the society. He has gone through the same. He has further submitted that on instructions of the respondent No. 2, he has no objection if the offence is compounded and the present applications are allowed. 6.5. Learned APP 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.P.P.Majmudar, learned advocate for the applicant has produced affidavit dated 11/03/2019 affirmed by the present applicant along with the letter dated 04/09/2018 wrote by the original complainant – the society. On behalf of the applicant – her husband Prabhakar Bahusaheb Kavlanekar is present before the Court. He has identified the signature of his wife on the affidavit dated 11/03/2019 and admits the contents of the affidavit. He further stated that as his wife is under treatment of knee could not remain present before this Court. On behalf of the applicant – her husband Prabhakar Bahusaheb Kavlanekar is present before the Court. He has identified the signature of his wife on the affidavit dated 11/03/2019 and admits the contents of the affidavit. He further stated that as his wife is under treatment of knee could not remain present before this Court. He stated that he is retired and out of two sons, one son died and another son has studied upto M.Com. and presently working in one private pharmaceutical company and earning about Rs.20,000 to Rs.25,000/-per month. 8. This Court has considered the contents of the affidavits, documentary evidence filed on behalf of 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 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. So far as the question of depositing the cost is concerned, this Court has considered the directions 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. The husband of the applicant is remained present before this Court and has stated that they both are senior citizens and out of two sons, one son died and another son studied upto M.Com. xxx xxx xxx 10.1. The husband of the applicant is remained present before this Court and has stated that they both are senior citizens and out of two sons, one son died and another son studied upto M.Com. and presently working with one private pharmaceutical company and earning about Rs.20 to 25 thousand per month. He has also stated that their financial condition is weak and his son is only breadwinner in family. 10.2. 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 cheques is deposited before the High Court Legal Services Committee towards cost as per the decision in the case of Damodar S. Prabhu (Supra). 11. Resultantly, both these applications are allowed and the impugned judgments and orders dated 10/04/2018 passed by the learned 7th Additional Sessions Judge, Vadodara in Criminal Appeal No. 32 of 2017 and Criminal Appeal No. 31 of 2017 respectively and judgments and orders dated 04/01/2017 passed by the learned 3rd Additional Senior Civil Judge, Vadodara in Criminal Case No. 3249 of 2016 and Criminal Case No. 2028 of 2017 respectively are hereby quashed and set aside qua the present applicant. 12. 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 matter before this Court for passing appropriate orders for recovery of the amount of cost. 13. The Registry of this Court is directed to disburse the amount of Rs.5,58,666/- (Rupees Five Lakh Fifty Eight Thousand Six Hundred Sixty-six Only) and an amount of Rs.1,66,514/- (Rupees One Lakh Sixty Six Thousand Five Hundred Fourteen Only) already deposited by the present applicant – accused in favour of the respondent No. 2 – the 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.