CR.RA/433/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 433 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAMESHGIRI DHUDAGIRI GOSWAMI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR ABHAYKUMAR P SHAH for Applicant(s) : 1, MR KC SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR SP MAJMUDAR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 23/06/2008 ORAL JUDGMENT 1. In this Criminal Revision Application under section 397 r.w. Section 401 of the Criminal Procedure Code, 1973, the petitioner has challenged orders dated 29.1.2007 and 17.6.2008 in criminal case CR.RA/433/2008 2/7 JUDGMENT No.3259 of 2005 and in Criminal Appeal No.2/2007 respectively. Today, when the matter is called out, Mr. AP Shah, learned advocate for the applicant has informed the Court that the parties have arrived at a full and final settlement and the offence is compounded. The parties, therefore, jointly requested to pass order in the captioned revision application, in view of the settlement arrived at between the parties. Hence, Rule. Learned APP, Mr. I.M.Pandya waives service of notice of rule on behalf of the respondent No.1 and learned advocate Mr. S.P.Majmudar waives service of notice of rule on behalf of the respondent No.2. At the request and with consent of the learned advocates for the respective parties, the application is taken up for final hearing today as the offence has been compounded. 2. Mr. Shah, learned advocate for the applicant has placed on record affidavit dated 23.6.2008 made by Ghemarbhai Moghabhai Patel. In light of the said affidavit, he has submitted that the applicant and the respondent No.2 have compounded the offence. CR.RA/433/2008 3/7 JUDGMENT 3. The complainant, Ghemarbhai Moghabhai Patel has, in the said affidavit, stated on oath as follows:- “I state that the matter has been amicably settled between the petitioner and myself i.e. the respondent No.2 herein. I state that I have been paid Rs.1,25,000/- towards the full and final settlement of my legally enforceable dues from the petitioner in respect of the cheque No.0836375 dated 16.8.2005 drawn on Banaskantha District Cental Cooperative Bank Ltd. Hence, in view of the said amicable settlement, I have no objection if the present Revision Application allowed.” 4. The respondent No.2, abovenamed, Ghemarbhai Moghabhai Patel is the original complainant and has remained present in the Court and admits the contents of the said affidavit and also admits having sworn the said affidavit. The respondent No.2 the complainant is also identified by his advocate. The respondent No.2 also admitted that full and final settlement has been arrived at and the offence is, accordingly, compounded. He has also stated that he has received Rs.1,25,000/- by cheque towards the full CR.RA/433/2008 4/7 JUDGMENT and final settlement of his legally enforceable dues and his complain, grievance and disputes are amicably as well as fully and finally settled and that he is agreeable to compound the offence and requests that the order dated 17.6.2008 passed in Criminal Appeal No.2 of 2007 by learned Additional Sessions Judge and Presiding Officer, 5th Fast Track Court, Banaskantha at Palanpur and the order dated 29.1.2007 in criminal case No.3259 of 2005 may be set aside. 5. So far as the factual background of the proceedings is concerned, the applicant had borrowed about Rs.2,00,000/- from the present respondent i.e. original complainant and subsequently, had issued a cheque bearing No. 08363375 dated 16.8.2005 for the said amount. According to the complainant, the said cheque was dishonoured. Therefore, the complainant was compelled to issue notice under the provisions of the Negotiable Instrument Act. Consequently, a notice dated 23.8.2005 was issued and served on the applicant. However, since no reply was received, the respondent filed the complaint which culminated into Criminal Case No.3259 of 2005. After hearing the CR.RA/433/2008 5/7 JUDGMENT parties, the learned Court passed judgment and order dated 29.1.2007 whereby the learned Court convicted the applicant herein for the offence punishable under section 138 of the Negotiable Instrument Act and imposed one year's imprisonment along with fine of Rs.5,000/- with a direction that in the event of default to make payment of fine, there would be simple imprisonment for further two months. Against the said judgment and order dated 29.1.2007, the applicant preferred appeal being Criminal Appeal No.2 of 2007. By judgment and order dated 17.6.2008, the learned Additional Sessions Judge and Presiding Officer, 5th Fast Track Court, Banaskantha at Palanpur was pleased to reject the appeal and confirm the judgment and order dated 29.1.2007 passed by the learned trial Court. It is against the said orders that the applicant has preferred present application. As mentioned above, during the pendency of the present application, full and final settlement between the parties has been arrived at. 6. In view of above, it appears that the respondent No. 2 original complainant has compounded the offence without any fear, coercion, threat or undue CR.RA/433/2008 6/7 JUDGMENT influence. It appears from the affidavit that the complainant has received and accepted the amount of Rs.1,25,000/- as a full and final settlement of his legally enforceable dues and his claim and dispute. It also shows that the parties have compounded the offence and therefore, the judgment of trial Court as confirmed by the lower appellate Court deserves to be and requires to be quashed. 7. In view of compounding of the offence by the parties, judgment and order dated 29.1.2007 passed by learned 7th Additional Senior Civil Judge and J.M.F.C., Palanpur in Criminal Case No. 3259 of 2005 and the judgment and order dated 17.6.2008 passed by learned Additional Sessions Judge and Presiding Officer, 5th Fast Track Court, Banaskantha at Palanpur in Criminal Appeal No.2 of 2007 are quashed and set aside and the applicant is acquitted for the offence charged against him. The amount of fine of Rs.5000/- paid by the petitioner is ordered to be returned to him after due verification. Rule is made absolute to the aforesaid extent. [K.M.Thaker, J.] CR.RA/433/2008 7/7 JUDGMENT kdc