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2023 DIGILAW 624 (BOM)

Silverina Gracias v. Prakash Datta Dessai

2023-03-02

B.P.COLABAWALLA

body2023
JUDGMENT 1. Rule. With the consent of Parties, Rule made returnable forthwith and heard finally. 2. Advocate Ryan Menezes is present on behalf of the Petitioner. The Respondent who has passed away is represented by his wife who is present in Court today along with her Advocate. 3. By this Petition, the Petitioner seeks compounding of offence under Sec. 138 of the Negotiable Instruments Act, 1881. The Petitioner was acquitted by the Judicial Magistrate First Class at Canacona in Criminal Case No. 17/OA/NI/2015 but was convicted by this Court in Criminal Appeal No. 45/2017 for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 and was sentenced to simple imprisonment for a period of 15 days and to pay compensation of ?8 lakhs, and in default to undergo simple imprisonment for a further period of 15 days. 4. Today, the parties before me have agreed that the offence can be compounded by the Petitioner by paying a sum of ?7 lakhs to the wife of the Respondent. In furtherance of this agreement, the Petitioner has handed over a Demand Draft in the sum of ?7 lakhs in favour of the wife of the Respondent. In these circumstances, both the parties request that this Court, in exercise of powers under Sec. 482 of the Cr.P.C. read with Article 226 of the Constitution of India, may permit the parties to compound the offence even after the Petitioner is convicted by this Court. 5. Since the parties have settled the dispute and have requested this Court to compound the offence, in view of the decision of the Gujarat High Court in the case of Kirpalsingh Pratapsingh Vs. Salvinder Kaur Hardisingh Lobana [2004 SCC Online Guj 291] as well as the decision of this Court in the case of Satish Madkaikar Vs. Xavier D'Souza & Another [Criminal Application (Main) No. 247/2008 decided on 7/10/2008], I am of the considered opinion that in the interest of justice, the request for compounding the offence should be granted. Accordingly, the parties are permitted to compound the offence under Sec. 138 of the Negotiable Instruments Act, 1881. Consequently, the conviction and sentence passed by this Court in Criminal Appeal No. 45/2017 are quashed and set aside and the Petitioner is acquitted of the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. 6. Accordingly, the parties are permitted to compound the offence under Sec. 138 of the Negotiable Instruments Act, 1881. Consequently, the conviction and sentence passed by this Court in Criminal Appeal No. 45/2017 are quashed and set aside and the Petitioner is acquitted of the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. 6. Rule is made absolute in the aforesaid terms and the Writ Petition is also disposed of in terms thereof. However, there shall be no order as to costs. 7. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.