I. Case Reference
| Case Citation | : | (2021) ibclaw.in 180 HC |
| Case Name | : | Khokhar Iliyas Bismillakhan Vs. State of Gujarat & Ors. |
| Appeal No. | : | R/Criminal Misc. Application No. 18712 of 2020 |
| Judgment Date | : | 06-May-21 |
| Court/Bench | : | High Court of Gujarat |
| Present for Petitioner(s) | : | Dr Venugopal Patel |
| Present for Respondent(s) | : | Mr Digant M Popat, Ms Nisha Thakore |
| Coram | : | Ms. Justice Vaibhavi D. Nanavati |
| Original Judgment | : | Download |
II. Full text of the judgement
ORAL ORDER
1. The present application is filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘the Code’), seeking the following reliefs:-
“7b.This Hon’ble Court may be pleased to quash and set aside the impugned judgment and order dated 31.12.2019 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Mehsana passed in Criminal Case No.1813 of 2019, under Section 138 of the Negotiable Instruments Act, 1881;
c. Pending admission and hearing of the present application, this Hon’ble Court may be pleased to stay the operation, execution and further proceedings of the impugned judgment and order dated 31.12.2019 passed by the learned 4 th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Mehsana passed in Criminal Case No.1813 of 2019, under Section 138 of the Negotiable Instruments Act, 1881.”
2. The brief facts of the case as stated in the application are reproduced hereinbelow:-
2.1. The applicant issued a cheque dated 29.11.2018 bearing no.088494 amounting to Rs.9,00,000/- drawn on Axis Bank, Naranpura Branch in favour of the original complainant and on deposition of the same, the cheque came to be dishonored on 05.12.2019 with notings that ‘Account Closed’ and the concerned bank informed the original complainant on 15.01.2019 as stated by the complainant. After issuance of notice, the original complainant instituted Criminal Complaint No.1813 of 2019 for the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act”).
2.2. The learned trial court vide order dated 31.12.2019, convicted the applicant imposing one year Simple Imprisonment and also directed the applicant to pay compensation to the original complainant to the tune of Rs.13,50,000/-, in default to which, further imprisonment of six months was directed.
2.3. The original complainant thereafter instituted Criminal Appeal for enhancement of sentence along with Criminal Misc. Application (stamp) No.8069 of 2020, for Leave to appeal under Section 378 of the Code.
2.4. Subsequent thereto, with the intervention of prestigious people of society and friends and relatives, the applicant and the respondent no.2-original complainant arrived at a settlement/compromise and the same has also been reduced in writing in form of affidavit filed by original complainant dated 21.12.2020.
3. Learned advocate Dr.Venugopal Patel appearing for the applicant has submitted that the dispute and grievances have been amicably resolved between the parties and in connection whereof, settlement affidavit dated 09.03.2020 has also been executed and the same has also been produced before the High Court in Criminal Misc. Application (stamp) No.8069 of 2020. Thus, he submitted that the impugned judgment and order and further proceedings in that regard, may be quashed and set aside.
4. Learned advocate Shri Digant Popat appearing for Respondent No.2 supports the submission made by Ld advocate for the applicant and states that the dispute between the parties is resolved amicably.Respondent no.2 has received the outstanding cheque amount from the applicant and the Respondent No.2 does not wish to continue with the proceedings initiated against the applicant and the same be quashed since the dispute does not survive anymore.
5. Learned advocate Dr.Venugopal Patel has placed reliance on the judgments of the Court in the case of Narottambhai Karshandas Nanda V/s. State of Gujarat, 2011 (0) GLHEL-HC-224758, in the case of Kirpal singh Pratap singh Ori V/s. Salvinder Kaur HardisinghLobana&Anr., 2004 (2) GLH 544, judgment of the Apex Court in the case of Damodar S. Prabhu V/s. Sayed Babalal H., (2010) 5 SCC 663 and various orders of the Court passed in Criminal Misc. Application No.5235 of 2010 with Criminal Revision Application No.368 of 2009, Criminal Revision Application No.479 of 2011 and Criminal Revision Application No.262 of 2015 dated 25.05.2010, 24.11.2011 and 04.06.2015 respectively, in support of his submissions.
6. Learned APP Ms. Nisha Thakore is not in a position to controvert the settled legal position and has fairly stated that the application for quashing the complaint with consent be allowed on imposition of appropriate costs.
7. I have heard the learned advocate Dr.Venugopal Patel for the applicant, learned advocate Mr.Digant Popat for respondent no.2 and learned APP Ms. Nisha Thakore for the respondent-State.
8. On 09.03.2021, this Court passed the following order:-
“1. Heard Dr.Venugopal Patel, learned advocate for the applicant, Mr.Digant M. Popat, learned advocate for the respondent no.2 and Ms. NishaThakore, learned APP for respondent-State.
2. Learned advocate for the applicant has taken this Court through the factual matrix arising out of the present application. He submitted that the amount has been repaid in cash. He submitted that respondent No. 2 has filed an affidavit in these proceedings and has declared that the dispute between the applicant and respondent No. 2 is resolved and the respondent No. 2 objection if the judgment and order dated 13.12.2019 passed in Criminal Case No. 1813 of 2019 under Section 138 of the Negotiable Instruments Act is quashed and set aside.
3. Since the applicant is also convicted under Section 138 of the Negotiable Instruments Act, learned advocates for appearing for both the sides, have relied upon the decisions reported in (2012) 1GDC 387, 2004(2) GLH 544 and (2010) 5 SCC 663.
4. Stand over to 15.03.2021.”
9. Subsequently, on 31.03.2021 this Court passed following order:
“It is stated in the affidavit filed by Mr. Pratik Jaydev bhai Barot that he has received the entire amount as agreed between the parties and he does not wish to pursue further and he has no objection if the judgment and order dated 31.12.2019 passed in Criminal Case No. 1813 of 2019 by the 4th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Mehsana is quashed.
Learned APP Ms. Nisha Thakore has submitted that since the applicant-accused may avail efficacious remedy by way of filing appeal under Section 141 of the Negotiable Instruments Act, 1881, the impugned FIR may not be quashed. She has submitted that appropriate cost may impose since the applicant accused has approached this Court after the order of conclusion was passed.
Under the circumstances, let the matter be kept for orders.”
10. This Court in the case of Kirpal singh Pratap singh V/s. Salvinder Kaur HadisinghLobana, 2004 (2) GLH 544 made the following observation :
“23. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under Section 138 of NI Act, can be settied by way of compromise irrespective of any other legislation including Cr.P.C. in general and Section 320 (1)(2) OR(6) of the Cr.P.C. in particular. The scheme of Section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation. So this provision has an element of substantive legislation and therefore, it can be said that the scheme of Section 320 docs not lay down only procedure; but still, the status of the scheme remains under a general law of procedure and as per the accepted proposition of law, the special law would prevail over general law. It is not necessary to enlist the authorities propounding this proposition of law available on this point. But for the sake of convenience, I would like to quote what the Apex Court has stated in the case of Municipal Corporation, Indore v. Ratnaprabha reported in AIR 1977 SC 308 where the Apex Court was dealing with similar principle and proposition of law of interpretation while dealing with the language of non obstante clause on the question of construction, it has been observed that:-
“As has been stated, clause (b) of Section 138 of the Act provides that the annual value of any building shall “notwithstanding anything contained in any other law for the time being in force” be deemed to be the gross annual rent for which the building might “reasonably at the time of the assessment be expected to be let from year to year” While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so “notwithstanding anything contained in any other law for the time being in force”. It appears to us that it would be a proper interpretation of the provisions of clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control] Act, 1961. This view will, in our opinion, give proper effect to the non obstante clause in clause (b) with due regard to its other provision that the letting value should be “reasonable”. Though the facts are materially different the ratio can be applied. The observations for similar clause made by the Apex Court in the case of Makbul Singh v. State of Punjab reported in AIR 1999 SC 1131 are also relevant for our purpose; wherein the Apex Court has stated that non obstante clause in Section 32(a) of the NDPS Act has overriding effect on powers of suspension, commutation and remission provided under the Cr.P.C.
24(i). The expression “special law” means a provision of law which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code stands on the same footing and defines the phrase ‘special law Sometimes, a particular act or part of a procedural law may be considered as general and can be given effect to with reference to some act. But it may be special with reference to other act.
24(ii). In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Apex Court in different decisions as a gist of the principle and it can be summarised that,
“When a special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject, is the accepted principle in the field of interpretation of statute.”
The operation or effect of a general Act may be curtailed by special Act even if a general Act contains a non obstante clause. But here is not a case where the language of Section 320 Cr.P.C. would come in the way in recording the compromise or 1n compounding the offence punishable under Section 138 of the NI Act. On the contrary provisions of Section 147 of NI Act though starts with a son obstante clause, is an affirmative enactment and this is possible to infer from the scheme that has overriding effect on the intention of legislature reflected in Section 320 Cr.P.C.
25. The offence punishable under Section 138 NI Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act 1974 , but sull it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under Section 138 of NI Act, at least can be inferred that the intention of legislature while inserting Section 147 of the NI Act was clear that the aggrieved party can compound the offence. On a plain reading of Section 147 of NI Act, it 1s clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.
27. The country is under the process of and progress towards globalization. So the intention of the legislature and object of enacting “Banking”, Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment, 1.e., Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of NI Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C. referred to hereinabove. So the parties, in reference to offence under Section 138 NI Act read with Section 147 of the said Act are at liberty to compound the matter at any stage even after the dismissal of the revision application. Even a convict undergoing imprisonment with the liability to pay the amount of fine imposed by the court and/or under an obligation to pay the the amount of compensation if awarded, as per the scheme of NI Act, can compound the matter. The complainant, i.e. person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking jurisdiction of this Court under Section 482 Cr.P.C. read with Article 226 of the Constitution of India.
29. The court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the court is asked to answer a particular point, normally the court should not venture to deal with the points which are not raised by any of the parties. But when the court was dealing with the said two Special Criminal Revision Applications certain queries were put during hearing to the learned counsel appearing for the parties and the points discussed were a matter of discussion in reference to sub-section 6 of Section 320 Cr.P.C., Section 147 of NI Act and the jurisdiction of this Court under Section 482 of Cr.P.C read with Article 226 of the Constitution of India. The court is also aware of other principle of law that when a thing is required to be done in a particular way (provided under a law or rules framed there under) then it should be done in that manner only. But when the jurisdiction of this Court being very wide under Article 226 of the Constitution of India read with third part of Section 482 Cr.P.C. the court can bring legal resolution. If all parties are asked to approach the Apex Court then, what will be situation, is a question which Is required to be considered in the background of another accepted progressive and pragmatic principle accepted by our courts that, if possible, the parties should be provided justice at the door step. The phrase “justice at the door step” has taken this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purpose of compounding offence is not made a condition precedent in Section 147 of NI Act. Of course, the parties compounding the offence under Section 138 of NI Act obviously are bound to satisfy the conscious of the court on facts, when the jurisdiction under Article 226 of the Constitution of India read with Section 482 Cr.P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions.”
11. It would be apposite to refer to the observations made and guidelines issued by the Apex Court in the case of Damodar S. Prabhu V/s Sayed Babalal H., [(2010) 5 SCC 663], which are produced as under:-
“10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:
“147, Offences to be compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.”
At this point, it would be apt to clarify that in view of the non obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter “CrPC’”) will not be applicable in the strict sense since the latter is meant for the specified offences under the Penal Code, 1860.
11. So far as CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the court, while sub-section (2) of the said section specifies the offences which are coms: undable with the leave of the court.
12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 CrPC which states that “No offence shall be compounded except as provided by this section”, A bare reading of this provision would lead us to the inference that offences punishable under Jaws other than the Penal Code also cannot be compounded, However, since Section 147 was inserted by way of an amendment to a special Jaw, the same will override the effect of Section 320(9) CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
18. It is quite obvious that with respect to the offence of dishonour of cheques,it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute, furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. 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.
22. Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate’s Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.
23. We are also in agreement with the Learned Attorney General’s suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an installment basis to be repaid in equated monthly installments, several cheques are taken which are dated for each monthly installment and upon the dishonor of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 of the CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.
24. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act.
25. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.”
12. This Court by the order dated 25.05.2010 in Criminal Misc. Application No.5235 of 2010 in Criminal Revision Application No.386 of 2009 made the following observations:-
“9 The Apex Court in the case of Vinay Devanna Nayak v. RyotSeva Sahakari Bank Ltd. reported in AIR 2008 SC 716 has observed as under in paras 17 18 of the judgment:
“17. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd.v. 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 of with a view to inducing the Payee or holder jn 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 decisions of this Court as well as the Apex Court to the facts of the present case, I am of the opinion that without deciding the matter on merits, as the matter is finally settled between the parties, this application is required to be allowed and the parties be permitted to compound the offence.
11 In the result, this application is allowed. The judgment and order dated 25-2-2010 passed by this Court in Criminal Revision Application No.368 of 2009 is hereby recalled and_ the judgment and order dated 29-4-2008 passed by the learned 13 Addl. Senior Civil Judge & J.M.F.C., Vadodara, in Criminal Case No.3808 of 2003 is hereby quashed and set aside and the judgment and order dated 12-5-2009 passed by the learned Addl. Sessions Judge, Fast Track Court No.5, Vadodara, in Criminal Appeal No.32 of 2008 is hereby confirmed and the applicant-accused is ordered to be acquitted. He is in jail and hence, he is ordered to be released forthwith, if not required in any other case. Fine, if any, paid by the accused is ordered to be refunded to him. The parties are permitted to compound the offence. Rule is made absolute…..”
13. This Court by the order dated 24.11.2011 in Criminal Revision Application No.479 of 2011 made the following observations:-
“6. The Apex Court in the case of Vinay Devanna Nayak v. RyotSeva Sahakari Bank Ltd. reported in AIR 2008 SC 716 has observed as under in paras 17 18 of the judgment:
“17. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd.v. 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 of with a view to inducing the Payee or holder jn 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.”
8. Applying the ratio of the aforesaid decision of the Apex Court to the facts of the present case, I ma of the opinion that this Revision Application is required to be allowed and the parties be permitted to compound the offence.
9. In the result, the Revision Application is allowed. The judgment and order of conviction and sentence dated 16.05.2011 passed in Criminal Case No.1787 of 2010 by the learned Metropolitan Magistrate (NI Act), Court No.5, Ahmedabad, as passed in Criminal Appeal No.2685 of 2011 by the learned Additional Sessions Judge, Ahmedabad City, dismissing the same are hereby quashed and set aside. The amount of Rs.25,000/- deposited by the applicant in the Registry of this Court be refunded to the respondent No.1 on proper identification. The parties are permitted to compound the offence and the accused is acquitted. The amount of fine paid by the accused is treated as the costs towards the Government and will not be refunded to the accused. Rule is made absolute. ..”
14. This Court in the case of Narottambhai Karshandas Nanda V/s. State of Gujarat, 2012 (1) GCD 387 in paragraph No. 8 observed as under:-
“8. In view of the above and considering the fact that as the parties have now settled the dispute amicably and the cheque amount is already paid by the applicant to respondent No. 2 and the applicant has also deposited a sum of Rs. 10,000/- with the Gujarat State Legal Services Authority to be deposited as per the decision of the Hon’ble Supreme Court in the case of DAMODAR S. PRABHU (Supra) to be deposited while permitting the applicant to compound the offence and considering the decision of the learned Single Judge of this Court in the case of KIRPALSINGH PRATAPSINGH (Supra) and as neither the learned APP nor the learned advocate appearing on behalf of the respondent No. 2, under instructions from his client, have no objection in permitting the applicant to compound the offence for which the applicant is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, applicant is permitted to compound the offence for which he is convicted and consequently the order of conviction passed by the learned trial Court dated 12/07/2005 in Criminal Case No. 581/2002 and the order passed by the learned Sessions Court dated 30/06/2009 in Criminal Appeal No. 26/2005 confirmed by this Court in Criminal Revision Application No. 619/2009 are hereby quashed and set aside.”
15. This Court by the order dated 04.06.2015 in Criminal Revision Application No.262 of 2015 made following observation:-
“4. Taking into consideration the fact that the dispute between the parties has been amicably settled, the offence stands compounded. Accordingly, this application is allowed. The order dated 04.01.2014 passed in Criminal Case No.972 of 2011 by the learned Additional Chief Metropolitan Magistrate, NI Act, Court No.28, Ahmedabad and order dated 22.5.2015 passed in Criminal Appeal No.36 of 2014 by the learned Additional Sessions Court, City Civil and Sessions Court, Court No.23, Ahmedabad are hereby ordered to be quashed and set aside. The accused be set at liberty if not required in any other offence.”
15.1. On 31.03.2021, the respondent no.2 remained present through video conference and stated that the parties have arrived at a settlement and the entire amount agreed between the parties is received by respondent no.2 and that he has no objection if the conviction of the applicant with respect to the present offence is quashed. He has further stated that there was no coercion, threat or force in entering into the compromise. He has entered into compromise with the applicant by free will.
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. This Court is aware that the ideal remedy for the parties ought to have been to prefer an appeal as available under the law. The guidelines as prescribed in the case of Damodar Prabhu (Supra) also provide for instituting proceedings for compounding the offence before the appellate court as the present proceedings are preferred after an order of conviction by a competent court.
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.
16.3. In view of the above observations and in view of the guidelines as laid down in the case of Damodar S. Prabhu (Supra) and taking into account the fact that the parties have settled the dispute amicably,in view of this court the compounding of the offence is required to be permitted.
17. The present application is allowed. The judgment and order dated 31.12.2019 passed in Criminal Case No.1813 of 2019 by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Mehsana under Section 138 of the NI Act and subsequent proceedings, if any, are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
18. The total amount of cheque is Rs.9,00,000/-. In view of this Court Rs.90,000/- is required to be deposited with the Gujarat State Legal Services Authority. Learned advocate for the applicant has stated that it is difficult for the applicant in the present times to deposit of Rs.90,000/- with the Gujarat State Legal Services Authority and that Court may take liberal approach. Acceding to the request of the learned advocate for the applicant and looking to the present situation of Covid 2019 pandemic and in the facts and circumstances of the present case the applicant is directed to deposit Rs.50,000/- (Rupees Fifty Thousand Only) within a period of four weeks with the Gujarat State Legal Services Authority. On production of receipt of the deposited amount as directed, the present judgment and order will be given effect.
(VAIBHAVI D. NANAVATI,J)
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