Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 124

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
M/s Kalapi Developers - Applicant
Versus
State of Gujarat - Respondent
R/Criminal Misc. Application No. 18334 of 2020 With R/Criminal Misc. Application No. 18404 of 2020 With R/Criminal Misc. Application No. 18425 of 2020 With R/Criminal Misc. Application No. 18410 of 2020 With R/Criminal Misc. Application No. 18374 of 2020 With R/Criminal Misc. Application No. 18411 of 2020 With R/Criminal Misc. Application No. 18407 of 2020 With R/Criminal Misc. Application No. 18409 of 2020 With R/Criminal Misc. Application No. 18371 of 2020 With R/Criminal Misc. Application No. 19499 of 2020 With R/Criminal Misc. Application No. 19560 of 2020 With R/Criminal Misc. Application No. 19497 of 2020 With R/Criminal Misc. Application No. 19455 of 2020 With R/Criminal Misc. Application No. 19459 of 2020 With R/Criminal Misc. Application No. 19461 of 2020 With R/Criminal Misc. Application No. 19553 of 2020 With R/Criminal Misc. Application No. 19551 of 2020 With R/Criminal Misc. Application No. 19555 of 2020
Decided On : 01-03-2021

Advocates Appeared:
For the Applicant :Mr. Yogesh S. Lakhani, Senior Advocate assisted by Mr. Maulin G. Pandya.
For the Respondent: Mr. L.B. Dabhi, A.P.P., Dhanesh R. Patel with Mr. Dhruv Toliya.

Point of law: In a given facts of the case, where accused person is facing convictions in 9 complaints and in each of these complaints, accused has faced conviction, wherein fine is separately imposed and compensation is also separately imposed, therefore, considering the financial crunch that the accused will have to face in this trying time, the Court deems it fit to directed the accused to deposit 20% of compensation instead directing to deposit 20% of the fine imposed.

Headnote:
Negotiable Instruments Act - Section 138 - Criminal Procedure Code,1973 - Sections-255(2), 357, 374, 389(3), 148(3), 143, 357(2) and 143A - Jeopardy - Compensation - Dispute are Reality the complainant has filed Criminal Case under Section 138 of the Negotiable Instruments Act Developers proprietor , 14th Additional Chief Judicial Magistrate - Case are held guilty for the offence of Section-138 of Negotiable Instrument Act and sentenced to undergo simple imprisonment of two years - Accused persons shall undergo further simple imprisonment of three months if they commit default in payment of fine - Criminal Appeal is filed Developers and proprietor Developers under Section 374 of Criminal Procedure Code - Along with appeal also filed under Section 389(3) of Criminal Procedure Code for suspending sentence –
Finding of the Court:
Compensation under Section 357 of the Criminal Procedure Code and has been brought on record of case regarding decree issued by Commercial Court in Commercial Civil Suit holding plaintiff company to entitle to recover with accrued rate of interest rate till realization of full amount - Court does not deem it fit to enhance the amount of deposit to more than compensation awarded interference on that count –
Result:Criminal Misc. Application dismissed
The applications filed by the complainant allowed

JUDGMENT :

1. RULE. Learned Advocate APP Mr. L.B. Dabhi waives service of Rule on behalf of the respondent State in all these matters and learned Advocate Mr. Dhanesh Patel waives service of Rule on behalf of respondent No.2 in Criminal Misc. Application No.18334 of 2020 and group matters and learned Advocate Mr. Maulin Pandya waives service of Rule on behalf of respondent Nos.2 and 3 in Criminal Misc. Application No.19499 of 2020 and group matters.

2. This group of applications is filed against the respective orders of the appellate Court in the proceedings under the provisions of Section 138 of the Negotiable Instruments Act. Criminal Misc. Application Nos.18334 of 2020, 18404 of 2020, 18425 of 2020, 18410 of 2020, 18374 of 2020, 18411 of 2020, 18407 of 2020, 18409 of 2020 and 18371 of 2020 are filed by the original accused and Criminal Misc. Application Nos.19499 of 2020, 19560 of 2020, 19497 of 2020, 19455 of 2020, 19459 of 2020, 19461 of 2020, 19553 of 2020, 19551 of 2020 and 19555 of 2020 are filed filed by the original complainant. The dispute between the parties which requires consideration is imposition of condition by the appellate Court while enlarging the convict on bail.

3. With consent of both the sides these applications are taken up for hearing and final disposal jointly. The facts are recorded from lead matters being Criminal Misc.Application no.18334 of 2020 and Criminal Misc.Application No.19499 of 2020, filed each by the original accused and original complainant respectively.

4. In the application filed by the original accused being Criminal Misc.Application No.18334 of 2020, the prayers are as under:-

“(B) Your Lordships be pleased to delete Condition Nos.3 and 4 imposed while passing an order dated 01.10.2020 below Exh.4 by the learned 2nd Additional District & Sessions Judge, Vadodara in Criminal Appeal No.133 of 2020.

(C) Pending admission, final hearing and disposal of this application, Your Lordships be pleased to stay implementation and operation of Condition Nos.3 and 4 imposed while passing an order dated 01.10.2020 below Exh.4 by the learned 2nd Additional District & Sessions Judge, Vadodara in Criminal Appeal No.133 of 2020.”

4.1 In the application filed by the original complainant being Criminal Misc.Application No.19499 of 2020, the prayer is as under:-

“(b) To modify the order dated 01.10.2020 passed below Exhibit no.4 by the Ld. 2Nd Addl. District and Sessions Judge, Vadodara in Criminal Appeal No.139 of 2020 and to suitably enhance the amount to be deposited by the Respondent Nos.2 and 3 – original accused, as a percentage of fine or compensation awarded by the Trial Court;”

5. The facts which are not in dispute are that Pratham Reality Pvt. Ltd. is the complainant who has filed Criminal Case No.48441 of 2011 (old case No.4865 of 2011) under Section 138 of the Negotiable Instruments Act (“the Act” for short) against M/s.Kalapi Developers and the proprietor of M/s.Kalapi Developers. After due trial, 14th Additional Chief Judicial Magistrate, Vadodara recorded conviction by judgment and order dated 12.03.2020 and recorded as under:-

“1. It is hereby ordered that as per the provisions of Section-255(2) of the Criminal Procedure Code, both the accused of this case are held guilty for the offence of Section-138 of the Negotiable Instrument Act and sentenced to undergo simple imprisonment of two years and fine of Rs.1,80,00,000/-. The accused persons shall undergo further simple imprisonment of three months if they commit default in payment of fine.

2. Out of the amount of fine paid by the accused persons, the amount of Rs.1,50,00,000/- (Rupees One Crore Fifty Lakh only) shall be paid to the complainant towards compensation as per Section-357 of the Criminal Procedure Code.

3. Provide copy of this judgment to the accused free of cost.”

6. Against the aforesaid judgment and order recording conviction, app

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