1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN NO.2060 OF 2008 WITH CRIMINAL APPLN NO.2061 OF 2008 M/s Sharmaji Textiles .. Applicant (in both the applications) -versus M/s Sandeep Traders & ors. .. Respondents (in both the applications) Shri.K.R.Tiwari,advocate for applicant in both the applications. Mr. P.A.Pol, APP for the state. Mr.J.S.Chandnani for the lst and 2nd respondent in both the applications CORAM: A.S. OKA, J. DATED: 6 th February,2009 P.C. 1. I have heard submissions of the learned counsel appearing for the applicant and learned counsel appearing for the first and second respondents. These applications have been preferred under sub section 4 of section 378 of the Code of Criminal Procedure, l973 for seeking leave to prefer an appeal against the impugned order by which first and second respondents have been acquitted of the offence punishable under section l38 of the Negotiable Instrument Act, l881. The facts of both the applications are 2 similar. 2. The learned counsel appearing for the first and second respondents have filed an affidavit in reply in Criminal Application No.2061/2008. To the said affidavit of second respondent, a true xerox copy of certified copy of order dated 9th April,2008 passed by the learned Additional Sessions Judge, Mumbai in Criminal Appeal No.l07 of 2008 has been annexed. He has also annexed a xerox copy of a certified copy of memorandum of understanding dated 9th April, 2008 executed by and between the applicant and the first and second respondents. The learned Counsel appearing for the first and second respondent pointed out that there were three complaints under sections 138 of the said Act filed by the applicant including the two which are subject matters of these two applications. The third complaint was decided and the first and the second respondents were convicted. Criminal Appeal No.l07 of 2008, was filed by second respondent for challenging the order of conviction. The learned counsel appearing for the first and the second respondent invited my attention to the memorandum of understanding dated 9th April,2008 filed on record of Criminal appeal No.l07 of 2008. He submitted that the recitals and various clauses in the memorandum of understanding show that there was a complete settlement between the parties and in fact the applicant had undertaken not to challenge the orders of acquittal passed in the two complaints 3 which are subject matter of these two applications. 3. The learned counsel appearing for the applicant has invited my attention to affidavit of the Proprietor of the applicant which is filed on 4th February,2009. He submitted that the applicant never intended to settle or compromise or compound the complaints which are the subject matter of these two applications. He invited my attention to the assertions made in the affidavit. He stated that the proprietor of the applicant is suffering from heart problem and diabetes. It is stated that he is not conversant with English language and legal terminology. He stated that he had informed his advocate to settle only one complaint which was the subject matter of the appeal No.107 of 2008. He stated that the total amount due and payable to the applicant is more than Rs.8,00,000/- and therefore, it is inconceivable that the applicant would have settled all the three complaints on receiving only a sum of Rs.l,80,000/-. He pointed that the applicant has stated in the said affidavit that a fraud has been played upon him and the Sessions Court by filing such a memorandum of understanding. He pointed out the averments made in paragraph l0 of the Affidavit of the Proprietor of the applicant in which it is stated that his advocate did not read over and explain the terms incorporated in the memorandum of understanding. He pointed out that the memorandum of understanding shows that in the 4 signature clause under it, initially it was mentioned that the applicant is represented through Shriram Vinayak Nerurkar and subsequently the said name has been deleted. He pointed out the statement of the proprietor of the applicant that he has not appeared before Notary Public. The submission of the learned counsel appearing for the applicant is that there is no compromise in the complaints subject matter of these two applications. On a query being made by this Court, he fairly stated that till today the applicant has not filed any proceeding before Sessions Court for setting aside order dated 9th April,2008 passed in Criminal Appeal No.l07 of 2008 on the basis of the said Memorandum of Understanding. He stated that said fraud has come to notice of the applicant recently and he will take out appropriate application before the Sessions Court. 4. I have carefully considered the submissions. It is not in dispute that on 9th April,2008 in a Criminal appeal No.l07 of 2008, a compromise pursis duly signed by the second respondent herein and Shri.Satyanarayan Sharma (Proprietor of the applicant herein) was filed. A memorandum of understanding has been admittedly signed by the Proprietor of the applicant and the second respondent and the same has been filed in the said Appeal alongwith the compromise pursis. 5. The Order dated 9th April, 2008 passed by the Sessions Court shows that the Proprietor of 5 the applicant herein who was second respondent before the Sessions Court was represented by an Advocate. The order records that the Proprietor of the applicant was present and terms of the compromise were verified. In the recitals in the memorandum of understanding dated 9th April,2008, there is a specific reference to the order of acquittal passed in the complaints subject matter of these two applications. In the recitals a specific undertaking of the applicant herein is recorded that no further action will be taken by filing appeal for challenging orders of acquittal. Clause No.5 of the Memorandum of Understanding reads thus, “5) The Complainant hereby state and declare that the Complainant has not preferred any criminal Appeal/Revision/Writ Petition against the order of acquittal by ;the Learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai in the aforesaid two cases vide criminal Complaints No.2398/S/l998 and 2399/S/l998 before any Higher Court of Law. The complainant further also undertakes that upon receipt of the said sum of Rs.l,80,000/- from the Accused as agreed herein above, the complainant shall not file any criminal Appeal/Revision/Writ Petition before Higher Court of Law.” 6. Below the memorandum of understanding, the learned Additional Sessions Judge has passed 6 an order in writing recording that the parties to the memorandum of understanding were personally present and the terms of the compromise are verified. The said order shows that both the parties were present before the Court and the learned Judge verified the terms and conditions of the settlement. One of the terms of the Settlement is that the second respondent herein had deposited a sum of Rs.30,000/- with the Sessions Court and the Proprietor of the applicant herein was permitted to withdraw the said amount. On instructions, the learned counsel appearing for applicant stated before me that the said amount has been withdrawn by the applicant. Thus, the compromise recorded before the Court of Session has been acted upon by the applicant. Compromise was recorded on 9th April,2008 in presence of the proprietor of the applicant after the learned Additional Sessions Judge verified the correctness of the agreement/terms between the parties. Till today the said order is not challenged by the applicant. The applicant is not disputing that he was present before the learned Additional Sessions Judge on 9th April,2008. He has not disputed his signature on the memorandum of understanding. 7. There is an undertaking recorded in the memorandum of Understanding that in view of the compromise and the settlement between the parties, the applicant will not prefer any appeal against acquittal. 7 8. A offence under section l38 of the Negotiable Instrument Act, l88l has been made compoundable by virtue of section l47 of the said Act of l88l. The memorandum of understanding shows that the applicant intended to compound the offence subject matter of these two applications. Hence no case is made out for grant of leave. Applications are rejected. 9. It is made clear that the observations made in this order are for limited purpose of considering the prayer for grant of special leave and nothing in this order shall be treated as an adjudication on the rights claimed by the parties. (A.S.OKA J.)