Gujarat High Court
Rajesh Madhusudan Rajyaguru vs State Of Gujarat on 23 July, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.MA/8942/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8942 of 2020
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RAJESH MADHUSUDAN RAJYAGURU
Versus
STATE OF GUJARAT
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Appearance:
ADITYA A GUPTA(7875) for the Applicant(s) No. 1
MOHIT A GUPTA(8967) for the Applicant(s) No. 1
MR AR GUPTA(1262) for the Applicant(s) No. 1
MS NEETA A PANDIT(5952) for the Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
VAIBHAV V GOSWAMY(9019) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 23/07/2020
ORAL ORDER
Rule returnable forthwith. The respondents waive service of notice of rule on behalf of respective parties.
1. The present application has been filed under Section 482 of the Cr.P.C. for the purpose of seeking following reliefs :
"A. Your Lordships be pleased to quash and set aside the impugned order dated 7.12.2019 passed by the 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10779 of 2016 which is annexed as Annexure-A1 in the interest of justice.
B. Your Lordships be pleased to stay the impugned order dated 7.12.2019 passed by the 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10779 of 2016 which is annexed as Annexure-A1 pending admission, hearing and Page 1 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER final disposal of this petition, in the interest of justice.
C. Be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case."
2. Brief facts of the case are that the applicant - original accused was developing a housing scheme in Surendranagar District and in that connection, the respondent No.2 had booked a flat in the said scheme by depositing the amount of Rs.10 lakhs in cash. On account of some issues, the applicant could not develop the scheme, as a result of which, had to return the amount to the respondent No.2 - original complainant and accordingly, a cheque was issued on 23.5.2016 bearing No.426904. When the said cheque came to be presented in the bank on 3.8.2016, the same was returned with remarks 'insufficient funds' which resulted into filingof the criminal complaint by respondent No.2 under Section 138 of the NI Act. This criminal complaint, after trial, culminated into an order of conviction dated 7.12.2019. During the passage of time, according to the applicant, the applicant as well as respondent No.2 have settled their disputes in between and the memorandum of settlement came to be executed on 12.6.2020, in which the applicant has already paid an amount of Rs.5,21,000/- to the respondent No.2 and the respondent No.2 has agreed to withdraw and give specific consent for quashment of an order dated 7.12.2019 passed in Criminal Case No.10779 of 2016. In short, the overall settlement has taken place which is deduced in writing. As a result of this, Page 2 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER present application is filed under Section 482 of the Cr.P.C. for seeking quashment of the impugned order dated 7.12.2019 passed by the learned 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10779 of 2016.
3. Pursuant to the notice having been issued by this Court on 30.6.2020, the respondent No.2 appeared before the Court and filed a specific affidavit on oath, without any undue pressure and with free will and confirmed the terms of the settlement. The said affidavit is reflecting on page-59 of the application compilation. As a result of this, the Mr.Goswami, learned advocate for the respondent No.2 has requested the Court to set aside the impugned order by granting the relief prayed for in the present application.
4. Additionally, Mr.Aditya Gupta, learned advocate, has also drawn the attention of the Court to the decision delivered by the cordinate bench of this Court dated 2.4.2018 passed in Special Criminal Application No.2491 of 2018 and has pointed out that in such kind of cases, when a genuine settlement has taken place, the approach of the Court would always to allow the parties to compound. Accordingly, the relief is requested to be granted.
5. To this submission, Mr.J.K.Shah, learned APP, has submitted that it appears that the settlement has taken place and the learned advocate has, on Page 3 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER instruction, when confirmed on behalf of the complainant, there is nothing much to be canvassed and has left it to the discretion of the Court.
6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that in respect of the impugned order dated 7.12.2019, a specific settlement has taken place in writing which settlement has been produced on record which is reflecting on page-51 which is signed by the parties and the learned advocate appearing on behalf of respondent No.2 has confirmed this fact of settlement in true sense. Additionally, it is also visible from the record that on page-59 of the affidavit filed by respondent No.2 on oath, confirming the terms of the settlement. The relevant extract of the same is reproduced hereinafter :
"3. I state that the disputes with the petitioner has been amicably settled and compromise has been arrived at between the parties. I state that in pursuance of the compromise, I have received an amount of Rs.5,21,000/- (Rupees Five Lakhs Twenty-one thousand) from the petitioner herein. I state that the parties have also entered into settlement agreement recording the terms of the settlement.
4. Therefore, as the disputes have been amicably settled, I do not wish to prosecute the petitioner herein. In view of the amicable settlement between the parties, I am submitting my consent to quash and set aside the order dated 7.12.2019 passed in criminal case No.10779 of 2016 by the 3rd Additional Chief Metropolitan Page 4 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER Magistrate, Rajkot.
5. I state that I have no grievance of any nature against the petitioner herein and the issue has been amicably settled. I request the Hon'ble Court to quash the order dated 7.12.2019 in the interest of justice and to lessen the hardships of the parties."
7. Keeping in view the aforesaid circumstance and in view of the decision delivered by the Coordinate Bench of this Court dated 2.4.2018, there is nothing much to be processed any further in the present proceedings. As a result of this, keeping in view the observations which are reflecting in an order passed by the Coordinate Bench, the Court is inclined to consider the request of the applicant. Some of the relevant observations contained in the aforesaid decsiions since this Court has considered, the same are reproduced hereinafter :
"24(iv). The Apex Court, while dealing with Section 41 of Indian Penal Code in the case of Kaushalya Rani v. Gopal Singh reported in AIR 1964 SC 260 has observed that the expression 'general law and 'special law are relative terms and referred to a particular subject dealt with by respective act so that it is not possible logically to label any set of laws as being general laws or special law. The stamp law contained in the Stamp Act will come under description of a special law in relation to crime in connection with the said law. But still, the law as regards Stamp Act will be a general law. The court is aware that the expression 'special law defined in Section 41 of Indian Penal Code cannot be taken to mean only enactment which creates fresh offences not made punishable under the Indian Penal Code. But undisputedly the offence made punishable under Page 5 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER Section 138 NI Act is a subject not specifically dealt with by Indian Penal Code. The liabilities created by Sections 138,139,141 and 143 of NI Act are in contemplation with an offence otherwise not contemplated by Indian Penal Code. In this background, Section 147 of NI Act would prevail over the scheme including sub-section 6 of Section 320 of 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 still 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 is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.
26. Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the NI Act should be treated as if the same is falling under table-II of Section 320 IPC. It will be difficult to accept the proposition put forward by Ms. Joshi learned APP that even if the offence made punishable under IPC and reference to Section 1 of Section 320, i.e. table I shown in Section 320 Cr.P.C. it cannot be compounded without prior permission. I would like to reproduce some part of the statement of objects and reasons of the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act 2002:Page 6 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020
R/CR.MA/8942/2020 ORDER "Negotiable Instruments Act 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1981, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. A large number of cases are reported to be pending under Sections 138 to 142 of the Negotiable Instruments Act in various courts in the country. Keeping in view the large number of complaints under the said Act, pending in various courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 181 and make recommendations as to what changes were needed to effectively achieve the purpose of that Section.
3...
4. Keeping in view the recommendations of the Standing Committee on finance and other representations, it has been decided to bring out, inter alia the following amendments in the Negotiable Instruments Act, 1881, namely. (i) xxxxx (ii) xxxxx
(iii) xxxxx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant. (v) (vi) (vii) to make the offences under the Act compoundable. ........Page 7 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020
R/CR.MA/8942/2020 ORDER
5. xxxxx
6. The Bill seeks to achieve the above
objects."
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, i.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 Page 8 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER 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.
31. In the circumstances, it is hereby declared that the compromise arrived between the parties to this litigation out of court is accepted as genuine and the order of conviction and sentence passed by the learned JMFC, Vadodara and confirmed in appeal by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this Court intends, otherwise to Page 9 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020 R/CR.MA/8942/2020 ORDER secure the ends of justice as provided under Section 482 Cr.P.C. obviously the order disposing Revision Application would not have any enforceable effect."
8. In view of the aforesaid facts and circumstances, the present application stands allowed and the impugned order, dated 7.12.2019, passed by the 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10779 of 2016, is hereby quashed and set aside. Rule is made absolute.
9. The Registry is directed to communicate this order through FAX and/or E-mail to the concerned trial court, forthwith.
(ASHUTOSH J. SHASTRI, J) DRASHTI K. SHUKLA Page 10 of 10 Downloaded on : Fri Jul 24 23:01:13 IST 2020