PINAL NAVNITBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case appears to be that the original complainant-respondent No.2 herein filed complaint under section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act') being Criminal Case No.28159/99 before the learned Magistrate. At the end of the trial before the learned Magistrate, the matter resulted into conviction and the learned Magistrate imposed the sentence of 1 month S.I. with the fine of Rs.3,000/- vide Judgement and Order dated 30.08.2001. The matter was carried in appeal by the petitioner herein being Criminal Appeal No.21/01 before the learned Sessions Judge. It is the case of the petitioner herein that the matter was compromised inasmuch as the amount of Rs.50,000/- was paid and on behalf of original complainant and the accused it was declared before the learned Sessions Judge that the matter is compromised and therefore, nothing is remaining outstanding and the order for imposition of sentence be set aside and the amount of penalty be refunded. It appears that the said compromise was signed by the learned advocates of the respective party and the same was submitted on 10.05.2002. However, the attention of the learned Sessions Judge was not drawn and the learned Sessions Judge passed the order on merits of the appeal and vide Judgement dated 20.12.2002, the learned Sessions Judge dismissed the appeal. It is under these circumstances, the present petition before this Court.

(2.) It appears that pending the petition, the report was called for from the learned Sessions Judge and the factum of compromise tendered to the Court in the proceedings of the appeal and the declaration by the respective parties in not in dispute and on the contrary, as per the report of the learned Sessions Judge, it was not brought to the notice by either side that the amount is paid and nothing remains. Under these circumstances, the aspect of compromise and the declaration made by the respective parties remains undisputed.

(3.) The next aspect which may be required to be considered is permitting compromise at this stage based on the declaration filed before the learned Sessions Judge and the setting aside of the final order passed by the learned Magistrate and its confirmation thereof in the appeal by the learned Sessions Judge. As such, on the said aspects, the matter is covered by the decision of this Court in the case of Kirpalsingh Pratapsingh Vs. Salvinder Kaur Hardisingh Lobhana, 2004 2 GLH 544, the relevant observation in the said decision can be extracted for ready reference from paras 27 to 30 as under: