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ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 690 of 2018 ==========================================================
SONAL HARDIKBHAI THAKKAR....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ==========================================================
Appearance: MR.MANAN BHATT, ADVOCATE for the Applicant(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 MS MOXA THAKKAR, APP for the Respondent(s) No. 1 ==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 14/02/2018 ORAL ORDER
1.
By
this
writ
application under Article
226
of the
Constitution of India, the writ applicant has prayed for the following reliefs:
“7(a)
To
direction
pass
an
and/or
appropriate
writ
to
quash
order, and
set
aside the award passed by learned the 10th Additional Sessions
Session Court
Judge,
[Lok
City
Adalat],
Civil
&
Ahmedabad
dated 13/08/2016 passed in Criminal Appeal No: 186 of 2014 (Annexure-A) being illegal, unlawful, non-est and void ab-initio; (b)
To
pass
an
appropriate
order,
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direction
ORDER
and/or
writ
declaring
that
the
award passed by learned the 10th Additional Session Judge, City Civil & Sessions Court [Lok
Adalat],
Ahmedabad
dated
13/08/2016
passed in Criminal Appeal No: 186 of 2014 (Annexure-A)
is
invalid,
illegal,
non-est
and void ab-initio as obtained by playing fraud/misrepresentation; (c)
To
direction and
pass
an
and/or
writ
Sessions
appropriate
Court,
directing
order,
Ahmedabad
the
to
City
restore
the Criminal Appeal No.186 of 2014 to its original
file
for
further
hearing
and
adjudication; (d)
Pending admission and hearing of the
petition, this Hon'ble Court may be pleased to
direct
Ahmedabad
the to
cancelling
City take
the
and
Sessions
necessary
bail
and/or
Court,
action to
for send
Respondent No.2 in Judicial Custody for the interest of Justice & equity; (e)
Ad-interim relief in para (d) may be
granted; (f)
Any
such
other
and
further
orders
may be passed in the interest of Justice and equity.”
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2.
ORDER
The writ-applicant herein is the original complainant. He
lodged a complaint against the respondent No.2 for the offence punishable u/s. 138 of the Negotiable Instruments Act. The complaint was filed in the Court of the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Court No.30, Ahmedabad. The same came to be registered as the Criminal Case No. 291/2012. The trial Court convicted the respondent No.2 for the offence punishable under section 138 of the Negotiable Instruments Act. The respondent No.2 challenged the judgment and order of conviction before the City Civil and Sessions Court by filing the Criminal Appeal No. 186/2014. The Criminal Appeal No.186/2014 was put before the Lok Adalat for the purpose of settlement, on 30.08.2016. The Additional Sessions Judge, City Civil and Sessions Court, Court No.10, Lok Adalat, Ahmedabad, passed the following order:
: ORDER BELOW “Today,
both
present
before
the the
EXH.1 : parties Lok
remained
Adalat.
The
parties have prayed for the compounding of
the
Section
offence 147
of
as the
contemplated said
Act
as
by the
appellant and the respondent No.2 have arrived at a settlement and contents of
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the
ORDER
compromise
purshish
have
been
accepted by both the parties. Hence, in view of the nature of the offence in question
and
complainant entered
the
and
into
fact
accused
that have
compromise,
the
already
the
Court
thinks it proper to grant permission in facts and circumstances of the present case to compound. Hence, the following order is passed: ORDER (1) The hereby disposed
present ordered of
Criminal to
be
subject
to
Appeal allowed
the
is and
appellant
will have to pay Rs.12,50,000/- within one year from the date of this order to the respondent no.2 and within a three months
from
the
release
of
the
appellant, appellant has to further pay Rs.50,000/- to the respondent no.2. If the appellant fails to comply with the terms and conditions of the compromise purshish and fails to pay the amount as agreed by the parties in the compromise purshish, then the respondent no.2 can initiate appropriate proceedings against the appellant. (2) Compromise purshish which was filed by
the
parties
is
recorded.
The
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ORDER
appellant
is
hereby
acquitted
under
Criminal
Procedure
Section
147
ordered
section
Code
of
Instruments
Act
punishable
under
320(8)
be
of
the
read
the from
to
with
Negotiable the
Section
offence 138
of
Negotiable Instrument Act and judgment and order dated 11.04.2014 passed by the Learned
Additional
Magistrate,
Chief
Negotiable
Metropolitan
Instruments
Act
Court No.30, Ahmedabad in Criminal Case No.291/2012
is
hereby
ordered
to
be
quashed and set aside. (3) The
fine
deposited
and/or
by
the
deposit,
accused
if
before
any, the
Court, be paid to the appellant after making due verification accordingly. (4) The
order
be
Metropolitan Ahmedabad.
intimated Magistrate
Record
and
to
learned Court,
proceedings
be
sent back. (5) Necessary Yadi be sent to the Jail authority for releasing the appellant as per Rules. Pronounced in open court on this 13th day of August, 2016.”
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3.
ORDER
It appears that the respondent No.2 did not pay a single
penny. The Court below clarified that if the appellant failed to comply with the terms and conditions of the compromise pursis and pay the amount as agreed by the parties, then it would be open for the respondent No.2 to initiate the appropriate
proceedings
against
the
appellant
i.e.
the
respondent No.2 herein.
4.
On 29.01.2018, the following order was passed by this
Court:
“Let
notice
respondents,
be
issued
returnable
to on
the 14th
February 2018. The learned APP waives service of notice for and on behalf of the respondent no.1 State of Gujarat. Direct service to the respondent no.2. On
the
returnable
date,
notify
the
matter on top of the board.”
5.
Although the respondent No.2 has been served with the
notice issued by this Court, yet has chosen not to remain present before this Court either in person or through an advocate and oppose this application. The case, prima facie, appears to be outright of fraud.
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6.
ORDER
The Registry is directed to issue a non-bailable warrant of
arrest of the respondent No.2, to be served through the Kishanpura Police Station, making it returnable within two weeks. The respondent No.2 shall be produced before this Court on the warrant being executed. Direct service is permitted.
(J.B.PARDIWALA, J.) MAYA
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