At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE SAMIR J. DAVE
For the Applicant: Manoj T. Danak(6264)), Advocate. For the Respondent: RC. Kodekar, APP.
1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent no.1 and today, the respondent no.2 was remained present before this court thus, he waives service of notice of rule.
2. By way of present application, the applicant has requested to quash and set aside the judgment and order dated 06.03.2021 passed by learned Additional Sessions Judge, Court No.15, City Civil and Sessions Court, Ahmedabad City in Criminal Appeal No. 187 of 2019 as well as judgment and order dated 12th February 2019 passed by learned Additional Chief Metropolitan Magistrate, NI Act Court No.36, Ahmedabad in Criminal Case No. 3600095 of 2015.
3. Today, when the matter was taken up for hearing, respondent no.2 himself namely Parthesh Yogeshbhai Dalal was present and submitted that compromise has been arrived at with the applicant amicably. To support his version, he has filed affidavit which is available on record at page no.64 to 67 as well as compromise deed is also available on record at page no.68.
4. The respondent no.2 submits that full and final settlement has been arrived at between the parties and now there is no dispute exist and now, no ill will or grievance among the parties thus he does not want to proceed further with the prosecution initiated by him. The respondent no.2 has no objection if the orders passed by the courts below would be quashed and set aside.
5. Learned APP for the respondent State has submitted that after recording evidence, learned lower courts have passed the order of conviction against the present applicants and therefore, request made by both the learned advocates for the applicants as well as learned advocate for the respondent no.2 may not be granted.
6. Having considered the facts of the case and submissions made by learned advocate for the applicant as well as learned APP for the respondent-State and considering the facts of the affidavit filed by the respondent no.2, it appears that the dispute is settled amicably between the parties and whatever amount deposited by the applicant before the trial court, appellate court or this court may be permitted to be withdrawn by the respondent no.2.
7. The contents of affidavit filed by the respondent no.2 reveals that compromise has been arrived at between the parties and the respondent no.2 has no objections if both the impugned orders are quashed and set aside.
8. The Apex Court in the case of Vinay Devanna Nayak V/s 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. 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 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."
9. 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 contents of the affidavit filed by the respondent no.2, I am of the opinion that the revision application is required to be allowed and the parties be permitted to compound the offence.
10. In the result, present revision application is allowed. The judgment and order dated 06.03.2021 passed by learned Additional Sessions Judge, Court No.15, City Civil and Sessions Court, Ahmedabad City in Criminal Appeal No. 187 of 2019 as well as judgment and order dated 12 th February 2019 passed by learned Additional Chief Metropolitan Magistrate, NI Act Court No.36, Ahmedabad in
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Criminal Case No. 3600095 of 2015 stand 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. 11. Whatever amount deposited by the present applicant- original accused is ordered to be returned to the original complainant-respondent no.2, whether the said amount was deposited before the learned trial court, learned appellate court or this court. Rule is made absolute to the aforesaid extent.