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2019 DIGILAW 538 (GUJ)

Prajapati Amrutbhai Bhulabhai v. State Of Gujarat

2019-05-03

V.P.PATEL

body2019
JUDGMENT : Order in Criminal Misc. Application No.2/2019 (For Fixing an Early Date of Hearing: 1. The Applicant/Original Accused has filed this Criminal Misc. Application for fixing an early date of hearing as the main matter i.e. Criminal Revision Application No. 430 of 2019 is fixed for hearing in the month of June 2019. He submitted that as the parties have arrived at an amicable settlement, the main matter may be taken up for hearing today instead of finalizing the matter on the date already fixed by this Hon’ble Court on 11.6.2019. 2. Learned Advocate for Applicant has produced on record the Settlement Purshis dated 29.4.2019 at Annexure-B. 3. In view of the above fats, the main matter is taken up for hearing today for final disposal. 4. The present Criminal Misc. Application (for fixing an early date of hearing) is disposed of accordingly. Order in Criminal Revision Application No. 430/2019: 5. Heard learned Advocate Mr. Hardik A. Dave for Applicant (Original Accused), learned APP Ms. C.M.Shah for Opponent No.1-State of Gujarat and learned Advocate Mr. Vasant R. Barot appearing for Opponent No.2 (Original Complainant). Order under challenge 6. By way of this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the Applicants (Accused) have prayed for quashing and setting aside the impugned judgment and order dated 10.4.2019 passed by learned Additional Sessions Judge, Arravali at Modasa, in Criminal Appeal No. 46/2018, whereby the learned Judge has dismissed the Appeal and confirmed the judgment and order dated 7.7.2018 passed by the learned Additional Civil Judge and Judicial Magistrate First Class, Bayad in Criminal Case No. 1052/2014, whereby the Applicant (Accused) is held guilty for the offence under Section 138 of the Negotiable Instruments Act and sentenced to suffer SI for 1 year with fine of Rs.5.000/-, i.d. of payment of fine, further SI of 1 month. 7. 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 (Original Accused) and Opponent No.2 (Original Complainant) has been resolved amicably by way of Settlekent Purshis dated 29.4.2019 which is produced on record of Criminal Misc. Application No. 2 of 2019, this application is taken up for final disposal today. Submission of the Parties: 8. Application No. 2 of 2019, this application is taken up for final disposal today. Submission of the Parties: 8. 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 Applicants and would amount to abuse of process of law. 8.1 It is submitted that Opponent No.2-Patel Ramanbhai Kesharbhai has placed on record Settlement Purshis dated 29.4.2019 disclosing that the dispute between the Applicant and Opponent No.2 is resolved. It is further submitted by both the learned advocates that as per the settlement arrived at between the parties, the Opponent No.2-Original Complainant has received the settlement amount as stated in paragraph 2 of the Settlement Purshis and he also gives consent for allowing Criminal Revision Application No. 430 of 2019 and for quashing and setting aside the judgments at Annexure-A & B of the memo of Application. 8.2 Learned Additional Public Prosecutor Ms. C.M.Shah appearing for Opponent No.1-State of Gujarat has submitted that considering the offence being compoundable and for maintaining the harmonious relations between the party and in view of the facts and circumstances of the case, just and equitable order may be passed. Merits of the case 9. In view of the settlement purshis placed on record and statement made before this court that the dispute between the Applicant and Opponent No.2 is resolved, the present Criminal Revision Application deserve consideration. 9.1 That the Complainant-Patel Ramanbhai Kesharbhai himself is present before the court, he has submitted that an amount of Rs.1,00,000/- is received by him and the compromise is done for Rs.1,00,000/- considering the economic condition of the Applicant-Accused. He has no further grievance against the Applicant-Accused. He has identified his signature on the settlement agreement and he has endorsed the contents of the settlement agreement. He has also requested to release the Applicant/Accused from jail. 10. Keeping in mind the nature of dispute between the parties which is a private transaction, 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. 11. 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. 11. So far as the question of depositing the costs is concerned, the Hon’ble Apex Court in case of Damodar S. Prabhu v. Sayed Babalal H. reported in AIR 2010 SC 1907 has observed as under; “15(c) Similarly, if the application of 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” 12. Resultantly, the present Criminal Revision Application is allowed and the impugned judgment and order dated 10.4.2019 passed by learned Additional Sessions Judge, Arravali at Modasa, in Criminal Appeal No. 46/2018 confirming the judgment and order dated 7.7.2018 passed by the learned Additional Civil Judge and Judicial Magistrate First Class, Bayad in Criminal Case No. 1052/2014 are hereby quashed and set aside. 12.1 It is submitted by learned Advocate for Applicant/Accused that Criminal Misc. Application No.1/2019 (for suspension of sentence) has already been granted by this court vide order dated 15.4.2019 to release the Applicant/Accused on bail. But the Applicant/Accused has not been released on bail because of non-compliance of the condition of payment of Rs.1,00,000/-. Therefore he is in jail. 12.2 Now, the matter is resolved and the impugned orders are quashed and set aside, therefore the Applicant/Accused is required to be released from jail and accordingly, the jail authority is directed to release the Applicant/Accused, if he is not required for any other offence. 13. The Applicant (Accused) shall deposit 15% of the dishonoured cheque amount before the High Court Legal Services Authority within a period of 10 days towards the litigation cost as per the direction issued by the Hon’ble Apex Court in case of Damodar S. Prabhu v. Sayed Babalal H. (supra). 13. The Applicant (Accused) shall deposit 15% of the dishonoured cheque amount before the High Court Legal Services Authority within a period of 10 days towards the litigation cost as per the direction issued by the Hon’ble Apex Court in case of Damodar S. Prabhu v. Sayed Babalal H. (supra). 13.1 If the amount is not paid within 10 days, the Registry will list the matter for appropriate orders to proceed for recovery of such amount according to law. Rule is made absolute. Order in Criminal Application No. 1/2019: In view of contents of paragraph 12.2 made above by this Court, Criminal Misc. Application No. 1/2019 stands disposed of. Rule is made absolute.