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2022 DIGILAW 712 (GUJ)

Navinbhai Hirabhai Patel v. State of Gujarat

2022-05-31

NISHA M.THAKORE

body2022
ORDER : 1. Mr. Kishan Prajapati, learned advocate states that he has received instructions to appear for and on behalf of the original complainant-respondent No.2 and he shall file his Vakalatnama before the Registry. Registry shall accept the same. 2. Rule. Ms. M.H. Bhatt, learned APP waives service of notice of rule for and on behalf of the respondent No.1-State.Mr. Kishan Prajapati, learned advocate waives service of notice of rule for and on behalf of the original complainant -respondent No.2. 3. By way of present application, the applicant has requested to take the settlement on record and compound the offence by quashing and setting aside the judgment and order dated 18.4.2022 passed below Ex. 25 in Criminal Case No.622 of 2021 by learned 7th Additional Chief Judicial Magistrate, Gandhinagar and acquit the applicant. 4. Today, when the matter was taken up for hearing, learned advocates for the respective parties jointly submitted that the dispute between the parties is settled amicably. 5. Learned advocate for the respondent no.2 further submitted that original complainant-respondent No.2 is personally present before this Court and he is identified by him. The original complainant has also confirmed the fact that the dispute has been settled and he is in receipt of the disputed amount. He therefore, has no objection if impugned order of conviction is quashed and set aside. He has also filed his affidavit for the same which is permitted to be taken on record. Learned advocate for the respondent no.2 has identified the signature of the respondent no.2 in the affidavit. 6. Learned APP for the respondent-State has submitted that while recording evidence produced on record, learned court below has awarded sentence upon the applicant and thus, present application is required to be dismissed. She has therefore prayed not to entertain the application of Section 482 of Cr.P.C and dismiss the present application. She has further submitted that this Court may not exercise inherent powers under Section 482 of Cr.P.C, since once the order of conviction is passed, the only remedy available to the applicant is to challenge by way of statutory appeal. 7. She has therefore prayed not to entertain the application of Section 482 of Cr.P.C and dismiss the present application. She has further submitted that this Court may not exercise inherent powers under Section 482 of Cr.P.C, since once the order of conviction is passed, the only remedy available to the applicant is to challenge by way of statutory appeal. 7. Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State and considering the affidavit filed by the respondent no.2, it appears that the dispute is settled amicably between the parties and for the same, the applicant has paid the settlement amount to the respondent no.2 and respondent no.2 has acknowledge the same and has expressed no objection if the impugned order is quashed. 8. The relevant paragraphs of the affidavit filed by the respondent no.2 on 18th May, 2022 are as under : It is submitted at present the dispute between us is amicably resolved with the help of friends and traders and dispute is settled as amount is paid and account is settled and there is no outstanding towards account and therefore, now there is no ill will or grievance remain between us and all dispute is amicably resolved between us and therefore, I do not want to continue with my complaint further and therefore I earnestly urge this Hon’ble Court to terminate the proceeding as prayed by petitioner in the interest of justice. 9. The Apex Court in the case of Vinay Devanna Nayak Vs. Ryot Seva Sahakari Bank Ltd. reported in AIR 2008 SC 716 has observed as under in paras 17 and 18 of the judgment : “17. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd. Vs. Indian Technologists and Engineers, (1996) 2 SCC 739 , the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operation and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the party of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of banking operations and ensures credibility in transacting business through cheques. The provision is intended to prevent dishonesty on the party of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of banking operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realized this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002)”. 18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We therefore dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent.” 10. Applying the ratio of the aforesaid decision of the Apex Court to the facts of the present case as well as considering the settlement arrived at between the parties and respondent no.2 having received settlement amount, I am of the opinion that present application is required to be allowed and the parties are permitted to compound the offence. 11. In the result, present application is allowed. The judgment and order dated 18.4.2022 passed below Ex.25 in Criminal Case No.622 of 2021 by learned 7th Additional Chief Judicial Magistrate, Gandhinagar stands quashed and set aside. The applicant-accused is acquitted of the charge under Section 138 of the Negotiable Instruments Act. Bail bonds if any stands cancelled. Rule is made absolute to the aforesaid extent.