9911796707
TMI Blog2020 (8) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
