Important Point
Dishonour of cheque – Matter can be compromised.

R.P. Dholaria, J.

The revisionist is the original complainant who has alleged that he had loaned an amount of Rs. 15,000/- to the respondent No. 2 as they were having business relations and it was granted subject to repayment within a period of one month. As the respondent No. 2 herein failed to repay the amount within stipulated period, therefore, a demand was made by the revisionist and the respondent No. 2 issued a cheque for an amount of Rs. 15,000/- drawn on Ahmedabad District Co-op. Bank, Sarkhej Branch, dated 25.05.1999. Upon depositing the aforesaid cheque in his bank account, the same was returned with endorsement of 'insufficient fund' and therefore, he issued a legal notice through an advocate on 01.06.1999. In spite of receipt of the aforesaid legal notice, the respondent No. 2 did not repay the aforesaid amount. Therefore, he filed a complaint before the learned Judicial Magistrate First Class, Himatnagar being Criminal Case No.1930 of 1999. The said complaint, after conclusion of trial and hearing came to be disposed of convicting the respondent No. 2 for 6 months and fine of Rs. 1,000/-.

2. Respondent No. 2 being aggrieved and dissatisfied with the said judgment and order of the learned Magistrate, preferred Criminal Appeal No. 25 of 2006 under Section 374 of the Criminal Procedure Code, 1973 before the District and Sessions Court Sabarkantha at Himatnagar. The learned 2nd Additional Sessions Judge, Sabarkantha at Himatnagar by the impugned judgment and order dated 30.06.2007 set aside the judgment and order of the learned Judicial Magistrate First Class, Himatnagar and acquitted respondent No.2. The revisionist-original complainant has challenged this judgment and order in the present revision application.

3. This Court has heard learned advocate, Mr. Aamir Pathan for learned advocate, Mr. Ashish M. Dagli for the petitioner and learned APP, Mr. L.R. Pujari for respondent No. 1 and learned advocate, Mr. Mitesh R. Amin for respondent No. 2.

4. The learned advocate for the revisionist has contended that the findings recorded by the learned Additional Sessions Judge is unjust and improper; that the learned Additional Sessions Judge appears to have given more weightage to compromise at Exh.62, wherein some golden articles were handed over to the original complainant though the amount remains unpaid and ultimately, he has prayed to quash and set aside the impugned judgment rendered by the Additional Sessions Judge in Criminal Appeal No. 25 of 2006 and to restore the judgment of learned Magistrate convicting the respondent No. 2.

5. This Court has thoughtfully considering the rival submissions came to be made and also perused the judgment rendered by the learned Magistrate in Criminal Case No. 1930 of 1999 as well as the judgment rendered by the Additional Sessions Judge in Criminal Appeal No. 25 of 2006.

6. On going through the judgments, one thing is clear that while recording statement under Section 313 of the Code of Criminal Procedure, the present respondent No. 2 pleaded that on 30.03.2000 when non-bailable warrant was issued against him at that time he entered into a settlement with the original-complainant by handing over two gold rings and one gold chain weighing 3 tolas. The aforesaid ornaments were handed over with a clear understanding that the respondent No. 2 original-accused is required to repay the loan amount on 04.04.2000 and upon doing so, the original complainant will return the aforesaid golden ornaments to the original accused. The aforesaid settlement was arrived at between the parties and the same was tendered before the learned Magistrate vide Exh. 62. It appears that the learned Judicial Magistrate failed to consider and appreciate the aforesaid compromise pursis as well as defence raised by the original-accused in his statement under Section 313 recorded after the conclusion of trial and ultimately he came to be convicted.

7. While considering the Criminal Appeal, the learned Additional S