CR.RA/402/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 402 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 ? ========================================================= SHAH BABULAL PUNAMCHAND - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Applicant(s) : 1, MR KC SHAHL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, Respondent(s) : 2 PARTY – IN - PERSON ========================================================= 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 CR.RA/402/2008 2/7 JUDGMENT order dated 31.5.2008 in Criminal Appeal No.1/2007 and also order dated 11.12.2006 passed in Criminal Case No.811/2002. In this application, notice was issued on 5.6.2008 and was made returnable on 17.6.2008. On 20.6.2008, the Court was informed 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. K.C.Shah waives service of notice of rule on behalf of the respondent No.1. 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. AM Dagli, learned advocate for the petitioner has placed on record an affidavit dated 20.6.2008 made by Mr. Kumarpal Dayalal Shah, “Manager of Kumarpal Dahyalal Shah H.U.F.” i.e. the complainant. In light of the said affidavit, he submitted that the petitioner and the respondent No.2 CR.RA/402/2008 3/7 JUDGMENT have compounded the offence. 3. The complainant, Kumarpal Dayalal Shah has, in the said affidavit, stated on oath as follows:- “I have received full consideration on 20-6-2008 in respect of the cheque No.191555 for which the criminal case was instituted as Criminal Case No.811 of 2002 and Subsequently Criminal Appeal No.1 of 2007 was filed. I say that as I have received in cash Rs.1,15,000/- (One lack fifteen thousand Only) towards the principal amount as well as the Int. and Other Court expenses, I am agreeable to compound the offence and in view of the above facts the order passed by the learned Addl. Sr. Civil Judge & JMFC, Palanpur in Criminal Case No.811 of 2002 and order passed in Criminal Appeal No.1/07 by learned Sessions judge, Banaskantha at Palanpur dated: 31-5-2008 may accordingly be quashed and set aside and the Hon'ble Court may grant permission to compound the offence in the facts and circumstances of the present case.” CR.RA/402/2008 4/7 JUDGMENT 4. The respondent No.2, abovenamed, Kumarpal Dayalal Shah is the original complainant has remained present in the Court and admits the contents of the said affidavit and also admits having sworn the said affidavit. The advocate who appeared in the learned trial Court on behalf of the original complainant i.e. Mr. R.U.Somani, advocate, has identified the deponent of the said affidavit dated 20.6.2008 i.e. the complainant. The son of the original accused is also present in the Court and he also has identified the original complainant, who is deponent of the said affidavit. He also admits that a full and final settlement has been arrived at and the offence is, accordingly, compounded. He also states that he is agreeable to compound the offence and requests that the order dated 31.5.2008 passed in Criminal Appeal No.1 of 2007 by learned Sessions Judge, Banaskantha at Palanpur may be set aside. 5. So far as the factual background of the proceedings is concerned, it is noticed that the applicant had borrowed certain amounts from the CR.RA/402/2008 5/7 JUDGMENT present respondent i.e. original complainant and subsequently, he had issued a cheque dated 31.1.2002 towards repayment of borrowed amount. According to the complainant, the said cheque, which was for an amount of about Rs.45,000/- was dishonoured. Therefore, the complainant was compelled to issue notice under the provisions of the Negotiable Instrument Act. Consequently, a notice dated 5.2.2002 was issued and served on the applicant. However, since no reply was received, the respondent filed the complaint which culminated into Criminal Case No.811 of 2002. After hearing the parties, the learned Court passed judgment and order dated 19.12.2006 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 shall be simple imprisonment for further two months. Against the said judgment and order dated 19.12.2006, the applicant preferred appeal being Criminal Appeal No.1 of 2007. By judgment and order dated 31.5.2008, the learned CR.RA/402/2008 6/7 JUDGMENT Sessions Judge, Banaskantha at Palanpur was pleased to reject the appeal and confirm the judgment and order dated 19.12.2006 passed by the learned trial Court. 6. It is against the said judgment and order dated 31.5.2008 that the applicant has preferred present application. As mentioned above, during the pendency of the present application, a full and final settlement between the parties has been arrived at between the parties. 7. In view of above, it appears that the respondent No. 2 original complainant has compounded the offence without any fear, coercion, threat or undue influence. It appears from the affidavit that the complainant has received and accepted the amount of Rs.1,15,000/- towards principal amount, interest and other expenses, as a full and final settlement of his entire 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. CR.RA/402/2008 7/7 JUDGMENT 8. In view of compounding of the offence by the parties, judgment and order dated 19.12.2006 passed by learned 7th Additional Senior Civil Judge and J.M.F.C., Palanpur in Criminal Case No. 811 of 2002 and confirmed by the judgment and order dated 31.5.2008 passed by learned Sessions Judge, Banaskantha at Palanpur in Criminal Appeal No.1 of 2007 is 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.] kdc