Abhay M. Thipsay, J.@mdashHeard Mr. M.S. Kulkarni, the learned Counsel for the applicant. Heard Mr. B.A. Dhengle, the learned Counsel for the respondent No. 1. Heard Mr. GR. Ingole, the learned Additional Public Prosecutor, for the respondent No. 2. With the assistance of the learned Counsel for the parties, I have gone through the entire evidence adduced before the trial court, and the relevant parts of the impugned judgments.
2. In the course of arguments, Mr. Kulkarni, the learned Counsel for the applicant, submitted that, he be permitted to raise an additional ground of challenge in support of the Revision Application. He submitted that, the learned Magistrate who recorded the conviction, had not recorded any evidence in the case, and that, he merely acted on the evidence recorded by his predecessor. According to Mr. Kulkarni, this was not permissible in view of the provisions of Section 326(3) of the Code of Criminal Procedure, 1973 [For short, "the Code"]. He has also placed reliance on the decision of the Supreme Court of India, in the case of
3. Since this is a revision, any law point in support of contentions of a party can be raised. Accordingly, the applicant is permitted to raise a ground as Ground No. III-A. The same is taken on record.
4. Mr. B.A. Dhengle, the learned Counsel for the respondent No. 1, submitted that, the order of conviction, as recorded by the trial court, and as upheld by the appellate court, is proper and legal. As regards the contentions with respect to the provisions of Section 326(3) of the Code, Mr. Dhengle submits that, no such contention was raised during the trial, during the appeal, and during pendency of this Revision Application, till date.
5. In the course of arguments, it transpires that, two other cases filed by the respondent No. 1 herein, against the applicant herein, with respect to the offence punishable u/s 138 of the Negotiable Instruments Act, 1881, are pending before the Judicial Magistrate (First Class), Dhule. These cases relate to cheques allegedly issued in respect of the same transaction. It also transpires that, in support of his contention, that the cheques were stolen by the respondent No. 1, the applicant has also filed some prosecution against the respondent No. 1.
6. Considering the pendency of other two cases; the fact that the applicant had undergone a sentence of about 8 days; and that the applicant has already deposited an amount of Rs. 2,00,000/-, which is the cheque amount, in the trial court, the learned Counsel for the parties expressed that, it would be proper, if the present revision is disposed of, on the basis of the settlement, that is arrived at between the parties. This settlement, which has been arrived at, in the course of arguments, is to the effect that, amount of Rs. 2,00,000/-, deposited in the trial court, by the applicant, shall be given to the respondent No. 1. Over and above the said amount, the applicant shall pay an amount of Rs. 60,000/- [Rupees sixty thousand] to the respondent No. 1, within a period of three weeks from today. The statement of the learned Counsel for the applicant that, the applicant will deposit the said amount in the trial court, within a period of three weeks from today, is accepted.
7. Considering all the relevant aspects, by consent of the learned Counsel for the parties, the Revision Application is disposed of, as follows:
(a) Leave to compound the offence is granted.
(b) In view of this, the conviction of the applicant, and the sentence imposed upon him, vide order in STCC No. 2032/2006, passed by the 6th Judicial Magistrate (F.C.), Dhule, dated 12-12-2008, and as confirmed by the learned Additional Sessions Judge, Dhule, in Criminal Appeal No. 144/2008, dated 6-5-2010, are set aside. The applicant stands acquitted. His bail bonds are discharged.
(c) The amount of Rs. 2,00,000/- [Rupees two Lacs], deposited by the applicant, in the trial court, shall be given to the respondent No. 1, in accordance with the terms of compromise.
(d) Further, the applicant shall pay additionally, an amount of Rs. 60,000/- [Rupees sixty thousand], to the respondent No. 1, by depositing the same in the trial court, within a period of three weeks from today. Any failure on the part of the applicant, to deposit the aforesaid amount of Rs. 60,000/-, within the time stipulated above, shall forthwith be reported by the trial court, to this Court.
(e) It is made clear by the learned Counsel for the parties, and is accepted that, no contentions raised by the parties in the present Revision Application have been dealt with or decided by this Court on merits, and that, all the contentions of the parties in other proceedings, pending between them, are kept open.
The Revision Application is disposed of in the aforesaid terms.
