Gujarat High Court
Vishvaskumar Babubhai Chaudhari vs State Of Gujarat on 28 June, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18982 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VISHVASKUMAR BABUBHAI CHAUDHARI
Versus
STATE OF GUJARAT
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Appearance:
MR TUSHAR CHAUDHARY(5316) for the Applicant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Respondent(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Respondent(s) No. 2
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 28/06/2022
ORAL JUDGMENT
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C', for short), the applicant has prayed for quashing and setting aside the judgment and order dated 05.08.2019 passed by the Page 1 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 learned 5th Additional Chief Judicial Magistrate, Mahesana passed in Criminal Case No.1668 of 2017 for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act ('NI Act', for short).
2. Heard learned advocate Mr.Tushar Chaudhari for the applicant, learned Additional Public Prosecutor Ms.Maithili Mehta for Respondent No.1 - State and learned advocate Mr.Dakshesh Mehta for Respondent No.2 - original complainant.
3. With the consent of learned advocates for the respective parties, the matter is taken up for final hearing. Hence, Rule returnable forthwith. Learned advocates waive service of notice of Rule on behalf of their respective parties.
4. The brief facts of the present application are stated as under:
4.1 The present applicant availed a loan facility of Rs.5,50,000/- ( Rupees Five Lakhs and Fifty Thousnad ) from the Respondent No.2 - Bank and towards repayment of the aforesaid loan amount, a cheque bearing No.000001 dtd.06.01.2017 drawn on the Mahesana Urban Cooperative Bank Limited, Rajmahel Road Branch, Mahesana of Rs.5,27,701/- (Rupees Five Lakhs Twenty Seven Thousand and Seven Hundred One Only) was given to Respondent No.2 - Bank.Page 2 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022
R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 4.2 When the aforesaid cheque was deposited by the Bank, the said cheque was returned with endorsement "insufficient funds" on 06.01.2017 and hence the Bank initiated legal action against the present applicant under Section 138 of the 'NI Act'.
4.3 After issuance of the notice under Section 138 of the 'NI Act', a complaint being Criminal Case No.1668 of 2017 was filed by the Respondent No.2 - Bank before the learned 5th Additional Chief Judicial Magistrate, Mahesana, which was contested by the present applicant, however, ultimately Criminal Case No.1668 of 2017 was decided on 05.08.2019 by the learned 5 th Additional Chief Judicial Magistrate, Mahesana vide order below Exh.5, the application was held guilty for offence under Section 138 of the 'NI Act' and was imposed simple imprisonment of one year. Further, the applicant was also directed to pay a sum of Rs.5,27,701/- towards the compensation within a period of 30 days of the date of the said order.
4.4 The applicant thereafter challenged the aforesaid judgment before this Court by preferring present application being Criminal Miscellaneous Application No.18982 of 2019.
5.1 During the pendency of this petition before this Court, it seems that the petitioner repaid the entire cheque amount to the Respondent No.2 - Bank and Respondent No.2 - Bank filed an affidavit dtd.20.12.2019 Page 3 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 which was affirmed by one Mr.Ashokkumar M. Patel, an authorised officer of Respondent No.2 - Bank wherein in para:12 it is stated as under:
"12. With reference to para 13 of the petition, the deponent of this affidavit requests this Hon'ble Court that as the entire outstanding amount has been deposited with the Bank by the petitioner and No Due Certificate is also issued by the Bank, the respondent No.2 Bank has no objection if the criminal complaint and the order are quashed as prayed for, in the interest of justice."
5.2 Since in the affidavit filed by the Bank it is categorically stated that the entire outstanding amount has been deposited by the present applicant and no due certificate has been issued by the Bank, if the criminal complaint as well as the judgment impugned are quashed, the matter is taken up for final hearing today.
6. Learned advocate Mr.Tushar Chaudhari appearing for the applicant pointed out that no due certificate has been issued by the Bank on 27.08.2019 and submitted that now there is no outstanding amount to be paid to the Respondent No.2 Bank and since the cheque amount has also been repaid by the present applicant, the complaint against the present applicant be quashed and set aside.
7. Learned advocate Mr.Dakshesh Mehta appearing for the Respondent No.2 - Bank submitted that he does not have any objection if the judgment against the present applicant, which is impugned in this application, is quashed. He drew attention of this Court to the Page 4 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 guidelines laid down by Honourable the Supreme Court of India in respect of compounding offence under the 'NI Act' rendered in the case of Damodar S. Prabhu vs. Sayed Babalal H. reported in (2010) 5 SCC 663 and submitted that since the amount is repaid by the present applicant only after his conviction imposed by the competent Court, he is required to pay 15% of the cheque amount towards the cost of the petition to be paid to State Legal Services Authority.
8. Learned advocate Mr.Tushar Chaudhary submitted that in the same judgment in para:25, Honourable the Supreme Court has taken a view that the competent Court can reduce the cost with regard to specific circumstances of the case. He relied upon a decision of this Court rendered in the case of Khokhar Iliyas Bismillakhan vs. State of Gujarat and others dated 06.05.2021 in Criminal Miscellaneous Application No.18712 of 2020 as well as the order dtd.13.05.2022 passed by coordinate Bench of this Court in Criminal Miscellaneous Application No.8801 of 2022 in the case of Ankit Rameshbhai Ravat vs. State of Gujarat and submitted that by relying upon the judgment in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra), this Court in two different cases have exercised discretion in favour of the applicant who has settled the dispute by paying cheque amount to the concerned complainant after conviction and also requested that present applicant being poor person such discretion be exercised in favour Page 5 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 of the present applicant as well.
9. Learned Additional Public Prosecutor Ms.Maithili Mehta as well as learned advocate Mr.Dakshesh Mehta opposed the aforesaid request and submitted that the applicant be directed to pay a cost as per the judgment in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra) i.e. 15% of the cheque amount.
10.1 I have heard learned advocates for the respective parties and have perused the material on record. It is undisputed fact that the applicant has repaid the entire cheque amount and there is no due or outstanding amount payable by the applicant herein for which no due certificate is also issued by the Bank which is also on record. By way of an affidavit also the Bank has, in no uncertain terms, stated that there is no outstanding amount payable by the applicant and, therefore, the Bank has no objection if the criminal complaint as well as the judgment impugned in this application are quashed by this Court.
10.2 As the Honourable the Supreme Court has in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra) taken a view that if the cheque amount is repaid and dispute is resolved between the parties, on various stages, by imposing the suitable costs such offence can be compounded. The Honourable Supreme Court in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra), in Page 6 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 para:21, observed as under:
"21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:
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 Page 7 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 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."
10.3 Similarly, after issuing guidelines in respect of compounding offences under the 'NI Act', in para:25, the Honourable Supreme Court, in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra), has observed as under:
"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."
10.4 Conjoint reading of paras:21 and 25 above would suggest that though the guidelines are framed in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra), in a given case, considering the specific facts Page 8 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 and circumstances of the case, the Court can exercise the discretion and can reduce the cost. In the instant case, when the cheque amount is repaid and no due certificate is issued, as per the guidelines of Honourable the Supreme Court of India, in para:21, in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra), the complaint against the present applicant, even after the judgment of conviction passed against the applicant, can be quashed rater relegating the applicant to file appeal against the said judgment of conviction. As far as cost part is concerned, in para:25, Honourable the Supreme Court of India in the case of Damodar S. Prabhu vs. Sayed Babalal H. (supra), it has let to the discretion of the competent Court to consider such request based on specific facts and circumstances of the case.
11. Considering the fact that the present applicant has already repaid the cheque amount way-back in the year 2019, for which no due certificate is already issued by the Bank and considering the fact that it is pleaded before the Court that financial condition of the applicant is not that sound and he belongs from middle class family, instead of 15% cost, this Court deems it proper to impose a cost @ 5% of the cheque amount upon the present applicant to be paid to State Legal Services Authority.
12. In the result, the impugned judgment and order dated 05.08.2019 passed by the learned 5th Additional Chief Judicial Magistrate, Mahesana passed in Criminal Page 9 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022 R/CR.MA/18982/2019 JUDGMENT DATED: 28/06/2022 Case No.1668 of 2017 below Exh.17, is quashed and set aside by imposing cost @ 5% of the cheque amount upon the applicant to be paid within a period of 30 days on receipt of the certified copy of writ of this order, to the State Legal Services Authority.
13. With the aforesaid observations and directions, present application is allowed. Rule is made to the aforesaid extent. No order as to costs.
Direct service is permitted.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 10 of 10 Downloaded on : Wed Jun 29 21:45:38 IST 2022