MOHMMAD MOHSIN GANIBHAI MALEK vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FOR CONSENT QUASHING) NO.
15506 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

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Approved for Reporting Yes No
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MOHMMAD MOHSIN GANIBHAI MALEK
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. MOHAMMADFAIZAN M. SHAIKH(18336) for the Applicant(s) No. 1
MR. DHAWAN JAISWAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 28/10/2026

JUDGMENT
1. The Petitioner has preferred the instant petition under Article 226
& 227 of the Constitution of India read with Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, seeking the following
reliefs:-
a) To allow the present petition;
b) YOUR LORDSHIPS Be pleased to pass appropriate
order/s in exercise of powers under Article 226,227
of the Constitution Of India read with the provision
of Section 528 of BNSS and be pleased to quash and
setting aside the impugned Judgements/Orders of
conviction dated 23.02.2023 passed in Criminal Case
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
No. 5212 of 2021 by Learned Additional Chief
Judicial Magistrate, Anand, along with order dated
27.02.2026 passed in Criminal Appeal No. 179 of
2023 by the Learned Additional District and Session
Judge, Anand (At Annexure-A and Annexure-B) and
be pleased to grant all other consequential reliefs in
that regard;
c) Pending the admission, final hearing and disposal of
the present petition, be pleased to release the
petitioner from judicial custody, since the petitioner
is in judicial custody in connection impugned
Judgements/Orders of conviction dated 23.02.2023
passed in Criminal Case No. 5212 of 2021 by
Learned Additional Chief Judicial Magistrate, Anand,
along with order dated 27.02.2026 passed in
Criminal Appeal No. 179 of 2023 by the Learned
Additional District and Session Judge, Anand (At
Annexure-A and Annexure-B), in the interest of
justice;
d) Your Lordship be pleased to release of the petitioner
from jail/custody forthwith, if the petitioner is not
required in any other case,
e) Since the petitioner is in jail, YOUR LORDSHIPS may
be pleased to dispense with affidavit in support of
this application;
f) To pass such other and further orders as deemed fit
and proper by this Hon'ble Court.
2. Issue Rule to the respondents, returnable forthwith. Learned APP,
Mr. Dhawan Jaiswal accepts and waives service of Rule on behalf of
respondent No.1 - State. Learned advocate, Mr. Vishnu J Suthar accepts
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
and waives service of Rule on behalf of respondent No.2. He seeks time
and is hereby granted one week’s time to file his vakalatnama on behalf
of respondent No.2. Respondent No.2 – Mr. Saiyad Hanifali Maherali is
present before this Court and he has been duly identified by his
advocate.
3. It emerges from the record that the respondent No.2 herein –
complainant has preferred a complaint under Section 138 of the
Negotiable Instruments Act, 1881, which came to registered as a
Criminal Case. The said Criminal Case came to be decided vide
impugned Judgements/Orders of conviction dated 23.02.2023 passed in
Criminal Case No. 5212 of 2021 by Learned Additional Chief Judicial
Magistrate, Anand. The said conviction was confirmed vide order dated
27.02.2026 passed in Criminal Appeal No. 179 of 2023 by the Learned
Additional District and Session Judge, Anand. The petitioner herein was
held guilty for the offenses punishable under Section 138 of the
Negotiable Instruments Act, 1881, was convicted and directed to
undergo simple imprisonment for one year, and was further directed to
pay fine equivalent to twice the cheque amount and compensation
under Section 357 pf the Cr.Pc., with an additional 30 days’ simple
imprisonment in default.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioner submitted that the matter has
now been amicably settled between the parties, i.e., petitioner and
respondent No.2 – complainant. He submitted that the offense is
compoundable. In such circumstances, he prayed that the impugned
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
Judgements/Orders of conviction dated 23.02.2023 passed in Criminal
Case No. 5212 of 2021 by Learned Additional Chief Judicial Magistrate,
Anand and order of confirmation of conviction vide order dated
27.02.2026 passed in Criminal Appeal No. 179 of 2023 by the Learned
Additional District and Session Judge, Anand, as well as all
consequential proceedings arising therefrom qua the present petitioner
herein be quashed and set aside. In support of his contentions, he has
relied upon the judgments of the Hon’ble Apex Court in the cases of
Gian Singh Vs. State of Punjab & Anr. , reported in (2012) 10 SCC
303 , Madan Mohan Abbot Vs. State of Punjab , reported in
(2008) 4 SCC 582 , Nikhil Merchant Vs. Central Bureau of
Investigation & Anr. , reported in 2009 (1) GLH 31, Manoj
Sharma Vs. State & Ors. , reported in 2009 (1) GLH 190 and
Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in
2014 (2) Crime 67 (SC) as well as State of Haryana Vs.
Bhajanlal reported in AIR 1992 SC 604.
6. In response, respondent No.2/original complainant appearing in
person along with his counsel, admitted the factum of compromise and
admitted that he has received the entire amount. In view thereof, he
submitted that he has no objections if the impugned judgment and
order as well as all consequential proceedings arising therefrom qua the
present petitioner herein is quashed and set aside.
7. Per contra, learned APP appearing for respondent No.1 – State
submitted considering the facts and circumstances of the case, an
appropriate order may be passed.
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
8. Having considered the submissions of the learned counsels for
the parties and having gone through the records, it appears that
respondent No.2 herein – complainant has preferred a complaint under
Section 138 of the Negotiable Instruments Act, 1881, which came to
registered as a Criminal Case. The said Criminal Case came to be
decided vide impugned Judgment/Order of conviction dated 23.02.2023
passed in Criminal Case No. 5212 of 2021 by Learned Additional Chief
Judicial Magistrate, Anand. The said conviction was confirmed vide
order dated 27.02.2026 passed in Criminal Appeal No. 179 of 2023 by
the Learned Additional District and Session Judge, Anand. However,
now the matter has been amicably settled between the contesting
parties and respondent No.2 – complainant has filed his affidavit,
thereby admitting the factum of compromise. Para Nos.4 to 6 of the
said affidavit reads thus:-
“4. I state that, the Petitioner has paid the agreed
settlement amount to me, and I have accepted
the same as full and final satisfaction of all my
outstanding financial claims and grievances
against the petitioner regarding the transaction in
question.
5. I say and submit that since the dispute was
completely private, and personal in nature, and
because the settlement has been fully executed,
no grievance or dispute survives between the
Petitioner and me.
6. I state that I have no objection if,
Judgement/Order of conviction under Section 138
of the Negotiable Instruments Act, 1881 dated
23.02.2023 passed by Learned Additional Chief
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
Judicial Magistrate Anand in Criminal Case No.
5212 of 2021, which was confirmed by Learned
Additional District and Session Judge Anand vide
order dated 27.02.2026 in Criminal Appeal No. 179
of 2023 are quashed and set aside by this Hon'ble
Court. I am giving my free, voluntary, and willing
consent to compound the offence and terminate
all consequential criminal proceedings.”
9. Thus,in view of the settlement affidavit and also taking into
consideration the decisions rendered in the cases of Gian Singh
(supra), Madan Mohan Abbot (supra), Nikhil Merchant (supra),
Manoj Sharma (supra), Narinder Singh (supra) as well as
Bhajanlal (supra), it appears that continuing further with the criminal
proceedings in relation to the impugned FIR/complaint against the
petitioner-accused would be an unnecessary harassment to the
petitioner - accused. Further trial would be a futile exercise and
continuing with the criminal proceedings pursuant to the impugned FIR/
complaint would amount to abuse of process of law. Hence, to secure
the ends of justice, the impugned FIR/complaint as well as the
proceedings of the Criminal Case, and all other consequential
proceedings arising therefrom are required to be quashed and set aside
in exercise of the powers conferred under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023.
10. This Court has also referred the decision rendered by the Hon’ble
Apex Court in the case of SANJABIJ TARI V/S KISHORE S
BORCAR & ANR , reported in 2025 LawSuit(SC) 1302, wherein it is
held that since a large number of cheque bouncing cases are still
pending and interest rates have fallen in the last few years, this Court is
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
of the view that it is time to 'revisit and tweak the guidelines'.
Accordingly, the aforesaid guidelines of compounding are modified as
under:-
"THE GUIDELINES
(a) If the accused pays the cheque amount before
recording of his evidence (namely defence evidence),
then the Trial Court may allow compounding of the
offence without imposing any cost or penalty on the
accused.
(b) If the accused makes the payment of the cheque
amount post the recording of his evidence but prior to
the pronouncement of judgment by the Trial Court, the
Magistrate may allow compounding of the offence on
payment of additional 5% of the cheque amount with
the Legal Services Authority or such other Authority as
the Court deems fit.
(c) Similarly, if the payment of cheque amount is made
before the Sessions Court or a High Court in Revision or
Appeal, such Court may compound the offence on the
condition that the accused pays 7.5% of the cheque
amount by way of costs.
(d) Finally, if the cheque amount is tendered before this
Court, the figure would increase to 10% of the cheque
amount.”
11. Thus, considering the overall submissions and the fact that the
parties have amicably settled the dispute, present petition stands
allowed. As such, the impugned Judgment/Order of conviction dated
23.02.2023 passed in Criminal Case No. 5212 of 2021 by Learned
Additional Chief Judicial Magistrate, Anand and order of confirmation
dated 27.02.2026 passed in Criminal Appeal No. 179 of 2023 by the
Learned Additional District and Session Judge, Anand, as well as all
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R/SCR.A/15506/2026 JUDGMENT DATED: 28/10/2026
(GJHC240803972026)
consequential proceedings arising therefrom qua the present petitioner
is hereby quashed and set aside.
12. At this stage, it been pointed out by the learned counsel for the
petitioner that the petitioner is still behind bars. In view of the quashing
of the FIR/complaint and the subsequent proceedings arising therefrom,
concerned Jail Authorities are directed to release the petitioner
forthwith, if not required in connection with any other case. Registry is
directed to send a copy of this order to the concerned jail authorities for
compliance.
13. The present petitioner is directed to deposit an amount
equivalent to 7.5% of the cheque amount with the Gujarat High Court
Legal Aid Services Authority within a period of two weeks from the
receipt of copy of this order.
14. If the petitioner accused fails to deposit the aforesaid amount
within stipulated time period, the same shall be recovered as fine.
Necessary recovery warrant shall also be issued and the concerned
Collector shall recover the aforesaid amount as arrears of land revenue.
15. Direct service is permitted. Rule is made absolute accordingly.
(MOOL CHAND TYAGI, J)
ARUN
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