R. RAJESHWARI vs. H.N. JAGADISH  INSC 379 (5 March 2008)
S.B. Sinha & V.S. Sirpurkar 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
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,
"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 intention
to settle the matter. On a prayer made in that behalf, the Revision Application
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."
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
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.
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,
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 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
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
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
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 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 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
Verification of such an affidavit affirmed in support of an application
containing serious allegations against a member of a profession is wholly
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
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.
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