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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.