IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1357 OF 2005. CRIMINAL WRIT PETITION NO. 1357 OF 2005. CRIMINAL WRIT PETITION NO. 1357 OF 2005. Mrs.Usha Badri Poonawalla, Age: 44 years, Occ.: Business, residing at 93, Mahatma Gandhi Road, Pume Camp, Pune 411 001. .... Petitioner. Versus. 1. K.Kurien Babu, Age: 66 years, Occ.: Business, residing at 1, Tamanna, Viman Nagar, Pune 411 040. 2. Stae of Maharashtra. .... Respondents. Shri S.R.Chitnis, Senior Counsel with Shri J.B.Kocheta for the Petitioner. Respondent No.1 in person. Shri K.V.Saste, A.P.P. for the Respondent No.2. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATED : 8th September, 2005. DATED : 8th September, 2005. DATED : 8th September, 2005. ORAL JUDGMENT. 1. This Petition has been assigned to this Court by order dated 27th June 2005 passed by the Hon’ble the Chief Justice. On 6th July 2005 by consent of the learned Counsel appearing for the Petitioner and the Respondent No.1 appearing in person, this petition was taken up for final hearing. Thereafter I have heard learned Counsel appearing for the Petitioner and the : 2 : Respondent No.1 in person. I have perused two separate written submissions filed by the Respondent No.1 appearing in person. Though today the petition is fixed for dictation of judgment, I have heard the submissions made by the Respondent No.1 appearing in person for few minutes. 2. This is a petition filed under Article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973. The petition arises out of a complaint filed by the Respondent No.1 against the Petitioner under the provisions of section 138 of the Negotiable Instruments Act, 1881. The prayer in the petition is for quashing and setting aside the order passed by the learned Judicial Magistrate First Class, Court No.5, Pune, below Exh.1 in a complaint filed by the Respondent No.1 by which the learned Judge directed to frame charges against the Petitioner under the provisions of section 138 of the said Act of 1881. A prayer is also made for quashing the proceedings of the complaint in view of the composition of the dispute between the Petitioners and the Respondent No.1 in terms of the Memorandum of Understanding dated 9th September 1997. In the alternative, a prayer is made for discharge. It must be recorded here that this petition : 3 : pertains to the assignment of another learned Single Judge of this Court. By order dated 10th June 2005 the concerned learned Single Judge declined to take up the petition. By order dated 27th June 2005 passed by the Hon’ble the Chief Justice, this petition has been assigned to this Court. 3. With a view to appreciate the submissions made by the learned Counsel appearing for the Petitioner and the Respondent No.1 appearing in person, it will be necessary to refer to the facts of the case. The complaint filed by the Respondent No.1 is based on a cheque in the sum of Rs.8,90,680/- dated 29th October 1996 allegedly drawn by the Petitioner in favour of the Respondent No.1. A notice dated 19th November 1996 was issued by the Advocate for the Respondent No.1 to the Petitioner calling upon the Petitioner to pay the cheque amount within a period of 15 days. The case made out by the Respondent No.1 in the said notice is that from time to time the Respondent No.1 rendered financial assistance to the Petitioner. According to the Respondent No.1, he had paid a total sum of Rs.7,10,000/- by way of financial assistance. According to the case of the Respondent No.1, cheque amount of Rs.8,90,680/- consists of the principal amount of : 4 : Rs.7,10,000/- and Rs.1,80,680/- being the agreed interest at the rate of 24% thereon. The Respondent No.1 stated that the cheque was returned dishonorued with remark of the bankers that the funds were insufficient. The notice was replied to by the Petitioner by reply dated 7th December 1996 sent by the Advocate for the Petitioner. In the reply there is a denial by the Petitioner of having issued the cheque. The allegation in the reply is that the Respondent No.1 was acquainted with the Petitioner for reasonably long time and used to visit the Petitioner’s office. It is alleged that the Respondent No.1 got hold of some documents including the cheque in question. A private complaint was filed by the Respondent No.1 on 10th January 1997 and after recording the verification of the Respondent No.1, the learned Magistrate issued process on 18th June 1997. 4. It appears that the Petitioner filed a document at Exh.17 which is allegedly signed by the Respondent No.1 and the Petitioner before the trial Court. The said document is styled as Memorandum dated 9th September 1997. The Respondent No.1 filed an Application before the learned Magistrate praying that the said document at Exh.17 may be kept in sealed : 5 : envelop in the custody of the Nazir of the Court. In the said application the Respondent No.1 alleged that the Application at Exh.17 was never moved by him. On 10th November 1997, the learned Magistrate passed an order observing that in the document at Exh.17 no effective prayer was made by either party and therefore, the document at Exh.17 ordered be just filed without any effective relief. The learned Magistrate passed a separate order on the application made by the Respondent No.1 at Exh.18 by which he rejected the prayer made in the said application. The Respondent No.1 on 10th November 1997 made the application praying that the offence under section 193 of the IPC be added in the list of other offences for which the Petitioner is already being charged. The allegation made in the Application was that filing of document at Exh.17 by the Petitioner amounts to fabricating the evidence in a judicial proceeding. The learned Magistrate rejected the said application by order dated 6th December 1997. It appears that the said order was impugned by the Respondent No.1 by filing Criminal Writ Petition No.106 of 1998 in this Court. This Court disposed of the Writ Petition by order dated 13th February 1998. This Court rejected the petition by keeping open the right of the Respondent No.1 to file fresh application under section : 6 : 340 read with section 195 of the said Code of 1973 before the learned Magistrate. 5. The Petitioner herein filed Criminal Writ Petition No.870 of 1998 in this Court. The prayer in the said petition was for quashing the order of issuance of process and for dismissal of the complaint. The said petition was filed mainly relying upon the document at Exh.17 which according to the Petitioner was a Memorandum of Understanding executed between the parties. A contention was raised that the Court must give effect to the Memorandum of Understanding. It was also alleged that the cheque in question was never drawn by the Petitioner and in fact it was a stolen cheque. The said Writ Petition was disposed of by order dated 16th January 2002 by a learned Single Judge of this Court. The learned Single Judge recorded the statement of the learned Counsel for the Petitioner that the Petitioner shall move an application for discharge after which the learned Magistrate can record evidence on the application of discharge including the evidence of the hand writing expert and after recording the evidence adduced by the parties, the learned Magistrate shall pass appropriate orders on the Application in accordance with law. This Court directed the learned Magistrate to : 7 : consider the issue of taking action under section 340 of the said Code based on his findings on the discharge application in case he finds that the cheque on which the prosecution is based is a product of forgery. The said original cheque which was produced in this Court by the Respondent No.1 was ordered to be sent back to the Court of the learned Magistrate in a sealed cover along with the opinion of the expert Shri Phansalkar. The learned Judge observed that the attempt of settlement of dispute by the parties by entering into memorandum of understanding appears to have failed. Subsequently by order dated 23rd September 2002 passed under section 259 of the said Code of 1973, the learned Magistrate directed that the case be converted into warrant triable case and accordingly the Respondent No.1 was directed to lead evidence before charge. In the evidence led by the Respondent no.1, he produced original memorandum of understanding dated 9th September 1997 in evidence and the same was duly proved in evidence and was exhibited as Exh.58. By order dated 19th March 2005, the learned trial Judge held that prima-facie case is made out for framing charge under section 138 of the said Act. The said order was impugned by the Petitioner by filing a Revision Application. The Revision Application came to be rejected. : 8 : 6. The learned Counsel appearing for the Petitioner submitted that the Memorandum of Understanding dated 9th September 1997 (hereinafter referred to as "the said Memorandum") was produced and proved in evidence by the Respondent No.1 himself and as the Respondent No.1 admitted that he has received all the amounts which are mentioned in the Memorandum, it is obvious that the prosecution cannot proceed further. He submitted that the Memorandum itself records that the Respondent No.1 will withdraw the criminal case filed by him. He submitted that as the execution of the Memorandum is admitted, the learned Judge should not have framed the charge. He pointed out that some of the amounts mentioned in the Memorandum are admittedly received by the Respondent No.1 before filing of the complaint and the said fact was suppressed by the Respondent No.1 while filing the complaint. He submitted that in any event, in the light of the document i.e. the said Memorandum at Exh.58, the continuation of prosecution by the Respondent No.1 was an abuse of process of law and therefore, the same deserves to be quashed by exercising power under section 482 of the said Code of 1973. He pointed out that even the original cheque was not produced by the Respondent No.1 and only on the basis of : 9 : the order passed by this Court, the cheque was produced by the Respondent No.1. He pointed out that in the earlier petition, the relief was claimed on the basis of the Exh.17 and now the relief is claimed on the basis of the document at Exh.58. The learned Counsel for the Applicant relied upon certain decisions in support of his case reference to which will be made in the later part of this Judgment. 7. The Respondent No.1 appearing in person submitted that in the earlier petition filed by the Petitioner the prayer for quashing was made on the basis of the same Memorandum and the said prayer has been expressly rejected. He submitted that quashing the proceedings on the basis of the same document in this petition will amount to reviewing the earlier order passed by this Court. It is submitted that there is no power of review vesting in this Court. He submitted that as a result of the failure of the Petitioner to comply with the demand notice, offence under section 138 of the said Act of 1881 was made out and even assuming that under the said Memorandum he has received certain amount, the learned Magistrate was justified in framing the charge. He submitted that the interpretation of the Memorandum is a matter of evidence. He submitted that : 10 : apart from the amounts which are mentioned in the Memorandum, the Petitioner had agreed to pay certain amounts in cash to the Respondent No.1 which has not been paid. He submitted that the order directing framing of charge does not decide any rights of the parties and therefore, this Court should not interfere with the said order. He submitted that the proceedings cannot be quashed on the basis of the Memorandum as the said attempt made by the Petitioner has already failed in the earlier petition. He has placed reliance on several decisions of this Court and the Apex Court and reference to the same will be made at a later stage. 8. I have considered the rival submission. It is borne out from the record that the notice as required by the provisions of section 138 of the said Act of 1881 was issued to the Petitioner by the Respondent No.1 calling upon the Petitioner to pay the said amount. The notice was not complied with and therefore, a complaint came to be filed by the Respondent No.1 on which process has been issued. The Respondent No.1 appearing in person has placed reliance on the ruling of the Apex Court reported in 2001 (1) S.C.C. Page 631 (Rajneesh Aggarwal v/s. Amit J.Bhalla). The Apex Court held that even if during the pendency of the prosecution the : 11 : entire amount involved was deposited by the Accused, the same does not absolve the accused of criminal liability and therefore, on the ground of deposit of the entire amount, the complaint cannot be quashed. Paragraphs 7 and 8 of the said decision read thus: "7. So far as the question of deposit of the money during the pendency of these appeals is concerned, we may state that in course of hearing the parties wanted to settle the matter the Court and it is in that connection, to prove the bona fides, the respondent deposited the amount covered under all the three cheques in the Court, but the complainant’s counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So far as the criminal So far as the criminal So far as the criminal complaint is concerned, once the offence is complaint is concerned, once the offence is complaint is concerned, once the offence is committed, any payment made subsequent thereto committed, any payment made subsequent thereto committed, any payment made subsequent thereto will not absolve the accused of the liability will not absolve the accused of the liability will not absolve the accused of the liability of criminal offence, though in the matter of of criminal offence, though in the matter of of criminal offence, though in the matter of awarding of sentence, it may have some effect awarding of sentence, it may have some effect awarding of sentence, it may have some effect : 12 : on the court trying the offence. But by no on the court trying the offence. But by no on the court trying the offence. But by no stretch of imagination, a criminal proceeding stretch of imagination, a criminal proceeding stretch of imagination, a criminal proceeding could be quashed on account of deposit of could be quashed on account of deposit of could be quashed on account of deposit of money in the court or that an order of money in the court or that an order of money in the court or that an order of quashing of criminal proceeding, which is quashing of criminal proceeding, which is quashing of criminal proceeding, which is otherwise unsustainable in law, could be otherwise unsustainable in law, could be otherwise unsustainable in law, could be sustained because of the deposit of money in sustained because of the deposit of money in sustained because of the deposit of money in this Court. In this view of the matter, the this Court. In this view of the matter, the this Court. In this view of the matter, the so-called deposit of money by the respondent so-called deposit of money by the respondent so-called deposit of money by the respondent in this Court is of no consequence. in this Court is of no consequence. in this Court is of no consequence. 8. In the aforesaid premises, we set aside the impugned orders of the High Court and allow these appeals and direct that the criminal proceedings would be continued. The money which had been deposited by the accused in this Court, may be refunded to the accused through his counsel. The Magistrate is directed to dispose of the proceedings at an earlier date." (Emphasis supplied). The said decision is an authority for the proposition of law that even if the amount covered by the cheque is deposited in Court during the pendency of the complaint under section 138, it is no ground for quashing the proceedings. It must be borne in mind that in the said : 13 : decision in the case of Rajneesh (supra) the quashing was not sought on the ground that there was a compromise arrived at between the parties and the amount was not deposited pursuant to compromise between the parties. In the case before the Apex Court the deposit was for showing bona fides. The Respondent No.1 also invited my attention to the decision of the Apex Court reported in (2000) 7 S.C.C. page 388 (Cranex Ltd. and another v/s. Nagarjuna Finanance Ltd.& another). This was a case where order of conviction and sentence was passed under section 138 of the said Act of 1881. An appeal was preferred before the Sessions Court challenging the order of conviction. Subsequently there was a compromise between the parties. The observations of the Apex Court in paragraphs 7 to 9 of the said decision are thus: "7. The appellate Court will consider the The appellate Court will consider the The appellate Court will consider the subsequent events, namely, of the appellant subsequent events, namely, of the appellant subsequent events, namely, of the appellant having paid a sum of Rs.5,96,688/- under a having paid a sum of Rs.5,96,688/- under a having paid a sum of Rs.5,96,688/- under a settlement to the 1st respondent and will settlement to the 1st respondent and will settlement to the 1st respondent and will dispose of the appeal in accordance with law. dispose of the appeal in accordance with law. dispose of the appeal in accordance with law. On merits, it will be open even to set aside On merits, it will be open even to set aside On merits, it will be open even to set aside the conviction in accordance with law. the conviction in accordance with law. the conviction in accordance with law. Otherwise, it has power to convict or direct Otherwise, it has power to convict or direct Otherwise, it has power to convict or direct : 14 : sentence of imprisonment or fine. The sentence of imprisonment or fine. The sentence of imprisonment or fine. The appellate court can therefore take the appellate court can therefore take the appellate court can therefore take the subsequent events into account and pass such subsequent events into account and pass such subsequent events into account and pass such order as it may deem fit in the appeal. order as it may deem fit in the appeal. order as it may deem fit in the appeal. Under section 138 the Court can, if it is inclined to convict, pass an order of imprisonment or even fine. 8. The impugned order passed by the High Court in the present interlocutory proceedings is set aside and the matter is remanded to the appellate court, namely the VIth Additional Metropolitan Magistrate Sessions Judge, Secunderabad, as stated above. 9. We also record the statement of the learned counsel for the respondent that if the amount deposited is permitted to be withdrawn by the first respondent, then the 1st respondent will not press before the appellate court for a conviction or for a sentence, be it for imprisonment or fine. In such circumstances, the appellate court will consider whether the conviction is to be maintained or an order of imposition of fine : 15 : is to be passed, in the light of the stand taken by the counsel for the 1st respondent." (Emphasis supplied). A perusal of the said decision of the Apex Court shows that during the pendency of the appeal against the order of conviction, certain interim applications were filed by the Appellant in the appeal and the said applications were dismissed. Being aggrieved by the said order, a Revision Application was filed before the High Court which came to be dismissed. A Special Leave Petition was filed against the order of the High Court and during the pendency of the S.L.P. there was a compromise between the parties as a result of which certain amount was deposited by the accused in the trial Court. Considering the fact that there was subsequent development during the pendency of the Appeal which arose out of interlocutory application, the Apex Court remanded the matter to the Appellate Court for considering the subsequent event of payment of certain amount under a settlement. The apex Court observed that on merits it will be open for the Appellate Court even to set aside the conviction in accordance with law. The Apex Court directed that the Appellate Court can take subsequent events into account and pass such order as it : 16 : may deem fit. Thus the Apex Court remanded the matter to the Appellate Court to consider the subsequent event and clearly observed that in view of the subsequent event, it will be open for the Appellate Court to set aside the order of conviction. The Respondent No.1 has made submission based on another decision of the Apex Court reported in 1999 Cr.L.J. page 4606 (K.Bhaskaran v/s. Shankaran Vaidhyan Balan & anr.). He pointed out that the Apex Court held that the offence under section 138 is complete on the failure of the drawer to pay the cheque amount within 15 days from the date of giving notice. Relying upon the ratio of the said decision, he submitted that the order directing framing of charge under section 138 cannot be interfered with as prima-facie, the offence is complete. 9. It must be noted here that by the Negotiable Instrument (Amendment and Miscellaneous Provisions) Act, 2002, the said Act of 1881 was amended. By incorporation of section 147, the offence punishable under said Act of 1881 was made compoundable. It is true that the said provision was brought on the statute book during the pendency of the complaint but after execution of Memorandum by the Respondent No.1. Nevertheless the legislative intent as reflected in the : 17 : said amended provision will have to be kept in mind. 10. The aforesaid submission made by the Respondent No.1 may certainly help the Respondent No.1 in defeating the prayer made by the Petitioner in so far as the challenge to order dated 19th March 2005 passed by the trial Court is concerned. The trial Court has held that prima-facie offence under section 138 is made out and therefore, charge be framed. The trial Court may be justified in recording a finding that prima-facie case is made out for framing charge. If the prayer in this petition was only as regards challenge to the said order passed by the learned Magistrate, it was not necessary to go into the other aspects of the matter. 11. The prayer in this petition is also for quashing the prosecution on the basis of the memorandum at Exh.58. One of the submissions made by the learned Counsel appearing for the Petitioner is that in view of the admission by the Petitioner regarding the said document, the continuation of the prosecution will be an abuse of process of law. The question before me is whether the power under section 482 of the Code can be exercised in the facts of this case. There is no : 18 : gainsaying that the power