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Judgment
Umesh A. Trivedi, J
Rule. Learned APP, Mr.Rashesh Rindani,waives service of rule on behalf of respondent No.1-State and Mr.Vijay Patel, learned advocate for HL
Patel Advocates waives service of rule on behalf of respondent No.2.
This Revision Application is filed challenging the judgment of conviction and order of sentence passed by learned Additional Chief Metropolitan
Magistrate (Negotiable Instruments Act) Court No.29, Ahmedabad vide Criminal Case No.3359 of 2012 by order dated 27.04.2017 convicting the
applicant for an offence under Section 138 of the Negotiable Instruments Act and directing him to undergo simple imprisonment for a year and to pay
compensation to the tune of Rs.50 Lacs being the double amount of cheque in question along with interest at the rate of 9% within 60 days of the
order. At the same time, in default of the payment of said compensation amount, he was further ordered to undergo 30 days simple imprisonment. The
said order which came to be modified to the extent of amount of compensation only and rest of the part of the judgment was confirmed by the learned
Appellate Court by an order dated 17.11.2018 passed in Criminal Appeal No.436 of 2017.
Heard Mr.Tolia, learned advocate for the applicant, as also Mr.Vijay Patel, learned advocate for M/s.H.L.Patel Advocates for the original
respondent No.1-original complainant. Pursuant to mutual understanding between the complainant, as also the accused an affidavit cum undertaking
affirmed on 20.12.2018 whereby, the applicant has agreed to pay the amount of Rs.30 Lacs as mentioned in para-2 of the affidavit cum undertaking
which is taken on record. As per the break up given in it, Rs.30 Lacs are paid by 28.04.2019 and the receipt thereof has been accepted by Mr.Vijay
Patel, learned advocate for Respondent No.1.
Since the matter is settled between the parties in view of Section 147 of the Negotiable Instruments Act, such compounding is to be encouraged.
However, since the compounding is arrived at revisional stage in view of the judgment of the Supreme Court in the case of in the case of Damodar
S.Prabhu V/s. Sayed Babalal H. reported in AIR 2010 SC 1907, the applicant is required to pay cost of 15% of the cheque amount. Drawing attention
of this Court to para-17 of the judgment, Mr.Tolia, requests this Court to reduce the amount of cost as Court is given discretion on the ground that the
petitioner is aged about 32 years only and he has already paid the amount agreed as mentioned in the undertaking by borrowing it from the friends and
relatives. He is serving in private company drawing salary only Rs.25,000/- per month. Not only his own life time savings but his family members’
life time saving is used in repayment of the cheque amount. Therefore, he requests for reducing the cost to be paid.
Considering the financial capacity of the applicant, he is directed to pay a cost of Rs.1 Lac (Rupees One Lac Only) to be deposited with the Gujarat
State Legal Services Authority within a period of 4 (four) weeks from today. The applicant shall file an undertaking that the amount, as aforesaid, of
cost be deposited within time permitted without fail. That undertaking is required to be filed within a period of 1 (one) week from today.
Therefore, the judgment of conviction and order of sentence passed by learned Additional Chief Metropolitan Magistrate (Negotiable Instruments
Act) Court No.29, Ahmedabad vide Criminal Case No.3359 of 2012 by order dated 27.04.2017 modified by Appellate order dated 17.11.2018 passed
in Criminal Appeal No.436 of 2017 are hereby quashed and set aside.
In view of Sub-Section (8) of Section 320 of the Code of Criminal Procedure, 1973, the applicant is ordered to be acquitted of the charges levelled
against him.
Rule is made absolute. Direct service is permitted.