Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 331 (GUJ)

Sunil Kishanchand Vaswani v. State of Gujarat

2022-02-24

VIPUL M.PANCHOLI

body2022
JUDGMENT : 1. Rule. Learned Additional Public Prosecutor waives service of notice of Rule for respondent No.1 State and learned advocate Ms.Shabnam Alvi waives service of notice of Rule for respondent No.2. 2. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 ("the Code" for short) wherein the applicant has prayed that the judgment and order of conviction dated 14.9.2021 passed by learned JMFC, Kalol, Gandhinagar in Criminal Case No.1252 of 2019 and all the other consequential proceedings arising out of the said judgment be quashed and set aside. 3. Heard learned advocate Mr.Akshay Matani for the petitioner, learned Additional Public Prosecutor Mr.Hardik Soni for respondent No.1 State and learned advocate Ms.Shabnam Alvi for respondent No.2. 3. Learned advocate for the applicant has submitted that respondent No.2 herein has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I. Act" for short) against the applicant for dishonour of cheque amounting to Rs.4,50,000/-. It is submitted that the concerned trial Court, vide impugned order dated 14.9.2021, convicted the applicant for the offence under Section 138 of the N.I. Act, copy of the order is placed on record at page no.11. 3.1 At this stage, learned advocates for the parties submitted that now the dispute is amicably settled with the present applicant and therefore the memorandum of settlement was executed between the parties on 19.1.2022, copy of the said document is placed on record at page no.28. At this stage, it is also submitted that the respondent no.2- complainant has filed affidavit before this Court, copy of which is placed on record at page no.40 of the compilation. 4. The complainant is present before this Court and is identified by learned advocate Ms.Alvi. The complainant has stated before this Court that if the impugned judgment and order of conviction is set aside, he has no objection. It is, therefore, urged that the impugned judgment be quashed and set aside on the ground of settlement arrived at between the parties. 3.2 Learned advocate for the applicant has placed reliance upon the decision rendered by the Honourable Supreme Court in the case of Damodar S. Prabhu v. Sayed babalal H. reported in (2010) 5 SCC 663 and the order dated 06.05.2021 passed by this Court in Criminal Misc. Application No.18712 of 2020 (Khokhar Iliyas Bismilla Khan v. State of Gujarat & Anr.). Application No.18712 of 2020 (Khokhar Iliyas Bismilla Khan v. State of Gujarat & Anr.). Having relied on the said decisions, learned advocate for the applicant urged that compounding of offence is permissible even after the conviction under Section 138 of the N.I. Act on certain conditions. 3.3. Learned advocate for the applicant submits that the applicant is ready and willing to deposit the required amount with the Gujarat State Legal Services Authority. 4. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the applicant has been convicted by the concerned Criminal Court for the offence punishable under Section 138 of the N.I. Act. However, now, the parties have amicably settled the dispute and, therefore, the complainant has filed an affidavit stating that if the order of conviction passed against the applicant is quashed and set aside, he has no objection. 5. This Court, in the case of Khokhar Iliyas Bismilla Khan v. State of Gujarat & Anr. (supra), had an occasion to deal with a similar issue which is involved in the present matter. The observations made in Paragraphs-16 and 16.2 of the said decision are as under: "16. Applying the ratio of various decisions by this Court and the Apex Court as well as in view of the guidelines as laid down in the case of Damodar S. Prabhu (Supra) as also considering the object of Section 138 of the NI Act, which is mainly to inculcate faith in the efficacy of banking operations and credibility of transacting business through cheque as also taking into account the provisions of Section 147 which states that every offence punishable under this Act shall be compoundable. Further, it is mainly a transaction between the private parties where the State is not affected. 16.1 xxx xxx xxx 16.2. Generally the powers available under Section 482 of the Code would not have been exercised when a statutory remedy under the law is available, however considering the peculiar set of facts and circumstances it would not be in the interest of justice to relegate the parties to appellate court. 16.1 xxx xxx xxx 16.2. Generally the powers available under Section 482 of the Code would not have been exercised when a statutory remedy under the law is available, however considering the peculiar set of facts and circumstances it would not be in the interest of justice to relegate the parties to appellate court. Additionally when both the parties have invoked the jurisdiction of this Court and there is no bar on exercise of powers and the inherent powers of this court can always be invoked for imparting justice and bringing a quietus to the issue between the parties and hence, the present application is entertained." 7. In the case of Damodar S. Prabhu v. Sayed babalal H. (supra), the Honourable Supreme Court has issued guidelines in Para-21, relevant portion of which, reads as under: "The Guidelines:- (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (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. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount." 6. Keeping in view of the aforesaid decision rendered by the Honourable Supreme Court and the order passed by this Court, I am of the view that when the parties have settled the dispute amicably, compounding of the offence is required to be permitted. Accordingly, the application is allowed. Keeping in view of the aforesaid decision rendered by the Honourable Supreme Court and the order passed by this Court, I am of the view that when the parties have settled the dispute amicably, compounding of the offence is required to be permitted. Accordingly, the application is allowed. Impugned judgment and order of conviction dated 14.9.2021 passed by learned JMFC, Kalol, Gandhinagar in Criminal Case No.1252 of 2019 and all the other consequential proceedings arising out of the said judgment are quashed and set aside. Rule is made absolute, accordingly. 7. Respondent No.2 filed a complaint under Section 138 of the N.I. Act for dishonour of the cheque amounting to Rs.4,50,000/-. Therefore, as per the decision rendered by the Honourable Supreme Court, the applicant is required to deposit 15% of the amount of the cheque with the Gujarat State Legal Services Authority. Thus, the applicant is permitted to deposit Rs.67,500/- within a period of eight weeks from the date of receipt of a copy of this order with the Gujarat State Legal Services Authority. On production of receipt of the deposited amount as directed, the present order will be given an effect.