Full Judgment Text
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CASE NO.:
Appeal (crl.) 442 of 2008
PETITIONER:
R. Rajeshwari
RESPONDENT:
H.N. Jagadish
DATE OF JUDGMENT: 05/03/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 442 OF 2008
(Arising out of SLP (Crl) No.3213 of 2006)
S.B. Sinha, J.
1. Leave granted.
2. Interpretation of the provisions of Section 147 of the Negotiable
Instruments Act, vis-‘-vis Section 320 of the Code of Criminal Procedure is
involved in this appeal which arises out of judgments and orders dated
5.9.2005 and 27.1.2006 passed by the High Court of Karnataka.
3. The aforementioned orders were passed in the following factual
matrix :
4. Appellant filed a complaint petition against the respondent herein,
inter alia, alleging that he had advanced a sum of Rs.4,35,000/-. For the
purpose of repayment therefor, five cheques were issued. Three cheques
were honoured but two were dishonoured. The subject matter of the
complaint petition was a cheque issued by the respondent for a sum of
Rs.1,00,000/- which was presented to the bank on 15.9.1996. Appellant was
informed in regard to the dishonour of the cheque on 28.9.1996.
The learned Chief Judicial Magistrate, by a judgment and order dated
1.6.2000, found the respondent guilty for commission of an offence
punishable under Section 138 of the Negotiable Instruments Act and
sentenced him to undergo simple imprisonment for one month and to pay a
fine of Rs.2,00,000/- and in default to suffer simple imprisonment for one
month. It was directed that out of the said amount of compensation, a sum
of Rs.1,75,000/- may be paid to the appellant herein.
5. An appeal was preferred thereagainst and by a judgment and order
dated 14.2.2003, the XXIII Addl. City Civil & Sessions Judge, Bangalore
City dismissed the criminal appeal preferred by the respondent herein, inter
alia, holding :
"I have perused the entire order of the trial Court.
That the trial Court after considering all the
evidence and material placed on record has rightly
convicted the accused/appellant. The accused/
appellant has not made out any case, so as to
interfere with the order of the trial Court. The
order of the trial Court is neither capricious nor
mala fide. So, I feel it is not necessary to interfere
with the order of the trial Court. The trial Court
order deserves to be confirmed. In view of all the
above said discussion, I answer the point No.1 in
the negative."
6. A Criminal Revision was filed thereagainst by the respondent before
the High Court. It appears that counsel for the parties expressed their
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intention to settle the matter. On a prayer made in that behalf, the Revision
Application was adjourned.
7. The parties allegedly entered into a compromise. A compromise
petition was filed in terms of Section 147 of the Negotiable Instruments Act,
the terms whereof are :
"1. With intravension of well wishers and
friends the parties to the above case, have
decided to settle their difference amicably.
2. The petitioner agreed to pay the cheque
amount sum of Rs.1,00,000/- (Rupees one
lakh only) accordingly the petitioner today is
paying sum of Rs.25,000/- (Rupees Twenty
Five Thousand only) in addition to the
amount of Rs.75,000/- (Rupees Seventy
Five Thousand only) already deposited in
the above case in compliance of the interim
order.
3. The respondent has agreed not to claim any
other amount as determined by the court
below and also withdraw his contention and
the charges made against the petitioner
before the trial court and has no objection to
whatsoever to acquit the alleged offences.
4. The respondent further agreed that he will
not making above case against the petitioner
in any other case.
5. The petitioner and respondent set there
hands to sought their difference amicably
with the above terms and pray this Hon’ble
Court pleased to acquit the petitioner as
alleged of offences, for the ends of justice."
8. The High Court, however, in the light of the said application and
furthermore taking into consideration that a sum of Rs.75,000/- had already
been deposited, directed :
"In the light of the application filed as an amount
of Rs.75,000/- was already deposited, it is ordered
to pay further sum of Rs.30,000/- to the
complainant Smt. R. Rajeshwari and further to pay
a fine of Rs.5,000/- to the State. As the matter
came to be settled between the parties the sentence
to undergo simple imprisonment for a period of
one month is hereby set aside by modifying the
order of the Trial Court to pay further sum of
Rs.30,000/- to the complainant and an amount of
Rs.5,000/- to the State as fine. After the impugned
order came to be passed, an amount of Rs.30,000/-
has been paid to the complainant and the same is
reported by the learned Counsel Sri N.R. Naik.
The revision petitioner is granted one-week time to
deposit the fine amount before the Trial Court."
9. Inter alia, on the premise that such a proposal made by her lawyer to
her had expressly been rejected and he was instructed to argue the matter on
merit, an application for recall of the said order dated 5.9.2005 was filed.
The said application was listed before the learned Judge on 16.12.2005,
when it was ordered :
"Counsel for the Petitioner and the Counsel Sri
N.R. Naik for the respondent as well as the counsel
for the applicant are present.
Sri N.R. Naik submits that the amount of
Rs.30,000/- reported on 5.9.2005 will be paid
before the Court on 19.12.2005.
As request, call on 19.12.2005."
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Proceeding sheet dated 19.12.2005 states :
"The petitioner-accused Sri H.N. Jagadish is
present in person as well as the respondent-
complainant Smt. R. Rajeshwari is also present.
The learned counsel for Sri N.K. Naik submits that
he has brought the amount of Rs.30,000/- which he
will pay either to the petitioner or to the
respondent as per the directions to the Court.
The respondent-complainant Smt. R.
Rajeshwari refused to receive the amount of
Rs.30,000/- on the ground that it is meager and
wants the petitioner-accused to pay interest on the
said amount.
As the respondent-complainant Smt.
Rajeshwari refused to receive the amount of
Rs.30,000/-, the learned counsel Sri N.K. Naik is
directed to pay the amount to the petitioner-
accused Sri H.N. Jagadish. The Petitioner-accused
Shri H.N. Jagadish who is present in person reports
receipt of the amount of Rs.30,000/- from Sri N.K.
Naik.
As some allegations are made out and also
further taking note of the fact that the amount of
Rs.30,000/- is repaid to the petitioner-accused, no
further order is required. The petitioner-accused is
directed to deposit the said amount in Court.
Post the matter for hearing to consider as to
whether the matter which is disposed of, is liable
to be recalled or not.
Post after vacation."
10. However, by order dated 27.1.2006, the said application was rejected,
stating :
"Heard.
IA No.1/05 for recalling the order dated 5.9.2005
is rejected in view of the provision of Section 362
of Cr.P.C."
11. Mr. Bhat, learned counsel appearing on behalf of the appellant,
submitted that keeping in view the provisions contained in Section 4 read
with Section 320 of the Code of Criminal Procedure, it is evident that no
terms of settlement could have been filed before the High Court as express
instructions issued in that behalf were not given by the appellant to the
lawyer. It was urged that the conduct of the lawyer as also the subsequent
events would categorically show that the said consent terms were filed by
the counsel without any instructions for the appellant.
It was furthermore submitted that when a fraud of this nature is
practiced upon the court, the court is not denuded of its power to recall its
order despite the bar contained in Section 362 of the Code of Criminal
Procedure.
12. Negotiable Instruments Act is a special Act. Section 147 of the Act
provides for a non obstente clause, stating :
"Section 147 \026 Offences to be compoundable
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), every
offence punishable under this Act shall be
compoundable."
Indisputably, the provisions of the Code of Criminal Procedure, 1973
would be applicable to the proceedings pending before the courts for trial of
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offences under the said Act. Stricto sensu, however, the table appended to
Section 320 of the Code of Criminal Procedure is not attracted as the
provisions mentioned therein refer only to provisions of Indian Penal Code
and none other.
13. In such a situation, a settlement could be arrived at by and between
the complainant and the accused. While a settlement is arrived at, it is not
necessary under the provisions of the Act and/or Code of Criminal
Procedure to file any affidavit affirmed by the complainant or the accused.
By reason of the authority granted by a litigant in favour of his Advocate
which, inter alia, empowers the latter to enter into a settlement, any
settlement arrived at, on behalf of a party to a lis would be binding on the
parties thereto.
In Employers in relation to Monoharbahal Colliery Calcutta v. K.N.
Mishra & Ors. [AIR 1975 SC 1632], it has been held by this Court:
"The next question is whether the compromise is
binding on the petitioner. From what has been
stated above it would be clear that the petitioner
was not averse to the idea of compromise. He only
wanted the amount to be paid to him to be raised
above four thousand rupees which was originally
suggested. It also appears that in pursuance of a
stay order passed in this case the petitioner has
been receiving half of his wages throughout. He
does not specifically deny the receipt of a cheque
for Rs.4000/- sent by Mr. Mukherjee. It cannot
therefore be accepted that he was under the
impression, as he now tries to make out, that what
he was receiving was arrears of past wages
deposited in the Court in compliance with the
Court’s order. The advocate for the appellant had
filed the statement of the case on 13.11.69. The
petitioner/respondent had to file it by 17.12.69 but
that was not filed and the appeal was therefore, set
down ex parte against the petitioner/respondent. In
the circumstances and the idea of the compromise
not being unacceptable to the petitioner it was the
right and indeed the duty of his advocate Mr.
Mukherjee to do the best for his client. We are not
able to see any lack of authority in the action taken
by Mr. Mukherjee. We are of the opinion that
there are absolutely no merits in this application
and it is dismissed."
14. The High Court, while disposing of the criminal revision filed by the
respondents herein, passed a judgment merely modifying the order passed by
the learned trial court, while directing the accused to pay a further sum of
Rs.30,000/-. Apart from the sum of Rs.75,000/- deposited by him, he was
directed to pay a fine of Rs.5,000/- to the State. The order of conviction was
not set aside.
A judgment of conviction and sentence, therefore, was passed against
the respondent. Such a judgment of conviction and sentence could not have
been modified by the High Court in view of the express bar contained in
Section 362 of the Criminal Procedure Code which reads thus :
"Section 362 - Court not to alter judgment\027
Save as otherwise provided by this Code or by any
other law for the time being in force, no Court
when it has signed its judgment or final order
disposing of a case, shall alter or review the same
except to correct a clerical or arithmetical error."
15. In view of the aforementioned specific bar created in regard to
exercise of the jurisdiction of the High Court to review its own order, we are
of the opinion that ordinarily exercise of jurisdiction under Section 482 of
the Code of Criminal Procedure would be unwarranted. We assume that in
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some rare cases, the High Court may do so where a judgment has been
obtained from it by practicing fraud but it does not appear that such a case
has been made out. Appellant did not make any complaint against his
lawyer. She did not even implead her lawyer as a party.
The affidavit affirmed in support of the application verified as under :
"That the averments made in paragraphs 1 to 8 of
the accompanying application are true and correct
to the best of my knowledge, belief and
information."
Verification of such an affidavit affirmed in support of an application
containing serious allegations against a member of a profession is wholly
unwarranted.
16. No material has, therefore, been placed before us to show that the
allegations made in the said application are correct and/or on the basis
thereof the court could set the law in motion and take suo motu action in the
matter or direct initiation of any proceeding against the lawyer concerned.
Furthermore, as has been noticed hereinbefore, even before the High
Court, the appellant contended that she was not satisfied with the payment of
Rs.30,000/- as she was entitled to the interest on the said sum.
The Court, therefore, cannot rule out the possibility of the appellant’s
changing her mind after agreeing to the terms of settlement.
17. Submission of Mr. Bhat that in a situation of this nature where the
complaint was in terms of the order of learned Trial Judge to receive a sum
of Rs.1,75,000/-, the matter could not have been settled for a sum of
Rs.1,05,000/- cannot be accepted.
Why the parties entered into a settlement is not a matter for our
consideration. We are merely suggesting that such settlement was
permissible in law. Ex-facie, it does not violate any public policy and not
otherwise inequitable.
18. We are, therefore, of the opinion that no case has been made out for
interference with the impugned judgment. The appeal is dismissed
accordingly. However, the appellant shall be at liberty to approach the
concerned Bar Council or file an appropriate action against the lawyer
concerned.