Yog Raj v. Devi Dyal

withdrawn being compromised and the parties were to remain bound Crl. Misc. No. M-20202 of 2010 [2] by their statements. In terms of the statements (Annexure P1 colly.) of the parties it was, however, only agreed that they would sit together and clear their accounts. Yog Raj (petitioner) stated that if the principal amount due came to Rs.3,30,000/- then he (petitioner) would be responsible to pay Rs.3 lacs. If the amount comes to Rs.3,40,000/- then he would pay Rs.3,20,000/- and if the amount goes to Rs.3,80,000/- then he would be responsible to pay Rs.20,000/- less. On 8.9.2006, the petitioner paid an amount of Rs.50,000/- to the complainant and promised to pay Rs.50,000/- on 30.11.2006 and Rs.1 lac on 30.4.2007 and Rs.1 lac on 8.9.2007. Thereafter, if any excess amount was found to be due that would be paid by the petitioner on or before 31.12.2007. It was further stated by the petitioner that if he failed to pay the amount, his case could be started from the stage it was closed, for which he had no objection. The complainant (respondent) also made a statement accepting the amount of Rs.50,000/- and if the accused (petitioner) made the payments as per his statement, then his claim would stand satisfied. If the accused did not make the payments as per his statements, then he would be entitled to re-commence the case from that stage. Therefore, there was no statement by either of the parties for dismissing the complaint. According to the learned counsel for the petitioner, the petitioner has paid a sum of Rs.50,000/- on the date the statements (Annexure P1 colly.) were recorded i.e. on 8.9.2006. Thereafter, he has paid a sum of Rs.50,000/- on 30.11.2006 and 60,000/- later on. In fact the petitioner was in any case liable to pay a sum of Rs.2,50,000/- by 8.9.2007 in accordance with the schedule as was agreed in terms of the statements (Annexure P1 colly.) of the parties. The schedule as Crl. Misc. No. M-20202 of 2010 [3] was agreed to was not adhered to and the respondent filed an application (Annexure P3) before the learned Chief Judicial Magistrate, Mansa with a prayer for summoning the file and taking further action with regard to said file decided on 8.9.2006. The petitioner filed his reply (Annexure P4) to the said application. The learned Magistrate vide order dated 25.5.2010 (Annexure P5) restarted the proceedings. Learned counsel for the petitioner has contended that Section 362 CrPC creates a clear bar to review its order and the Court becomes functus officio. It is submitted that the respondent himself did not sit with the petitioner to clear the accounts which resulted in the payments not being made. Therefore, the order dated

25.5.2010 (Annexure P5) passed by the learned Magistrate is bad and the Court was clearly barred from taking up the matter again. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the record. It is not in dispute that during the proceedings in the complaint filed by the respondent under Section 138 of the Act, the petitioner on 8.9.2006 made a statement, the English translation of which is as follows:- “ Statement of Yog Raj son of Kishori Lal accused on oath It is stated that I have compromised the matter with the complainant and we will sit together and settle our account. If the principal amount comes to Rs.3,30,000/- then I will be responsible to pay Rs.3,00,000/- and if the amount comes to Crl. Misc. No. M-20202 of 2010 [4] Rs.3,40,000/- then I will pay Rs.3,20,000/- and if the amount goes to Rs.3,80,000/- then I will be responsible to pay Rs.20,000/- less. Today I have paid Rs.50,000/- cash to the complainant and Rs.50,000/- I will pay on

30.11.2006 and Rs.1,00,000/- on 30.4.2007 and Rs.1,00,000/- 8.9.2007. If thereafter, any excess amount is found to be due that I will pay on or before 31.12.2007. If on the aforesaid conditions, I fail to pay the amount, my case can be re-started from the stage at which it is closed. For that I have no objection. RO & AC Sd/- Yog Raj Sd/- JMIC 8.9.2006” The respondent also accepted the statement and it was stated as follows:- “ Statement of Devi Dayal complainant on oath It is stated that I have heard the statement of accused. I have received Rs.50,000/- today from the accused. If the accused, as per his statement, pays the amount then my claim will be satisfied and if the accused, as per his statement, does not pay the amount, I have a right to re-start the case from the present stage. I have left the Crl. Misc. No. M-20202 of 2010 [5] interest which is included in the cheque amount voluntarily in favour of accused. RO & AC Sd/- Devi Dayal Sd/- JMIC 8.9.2006” A perusal of the above said statements show that it was not the case of either of the parties that the complaint be dismissed as withdrawn but rather the same was to be kept in abeyance or adjourned sine die to be restarted in case the conditions as stated by the petitioner were not complied with. However, the learned trial Magistrate on 8.9.2010 passed the following order :- “ Complainant as well as accused got made statement that they have compromised the matter. In view of their statement, this complaint is dismissed as withdrawn being compromised. The parties shall remain bound by their statement. File be consigned to the record room.” Announced Judicial Magistrate Ist Class, Sd/- Mansa/8.9.2006 A perusal of the above order shows that the complaint was dismissed as withdrawn. The respondent filed an application (Annexure P3) for revival of the complaint which was objected to by the petitioner in his reply (Annexure P4). The learned trial Magistrate has allowed the application of the respondent. It was observed that the statements of the parties showed that the case was never withdrawn by the complainant/respondent but was kept in Crl. Misc. No. M-20202 of 2010 [6] abeyance to be revived on failure of the petitioner to adhere to his statement dated 8.9.2006. The contentions of the learned counsel for the petitioner, however, is that Section 362 CrPC prohibits the reopening of a final order except in cases of clerical or arithmetical errors. In view of the express prohibition under Section 362 CrPC it is submitted that the learned trial Magistrate gravelly erred in reviewing the order dated 8.9.2006 (Annexure P2). Learned counsel has referred to the following cases :-

1. Harjinder Singh v. State of U.T., Chandigarh, 2010 (1) RCR (Crl.) 855.

2. Harjeet Singh v. State of West Bengal, 2005 (3) RCR (Crl.) 477.

3. State Rep. By DSP, SBCID, Chennai v. K.V. Rajendran and Others, 2008 (4) RCR (Crl.) 278.

4. C. Subramanyam v. C. Sumathi, 2004 (3) RCR (Crl.) 547. It is no doubt that once the Court has signed its judgment or final order disposing of a case, it is not to alter or review the same except to correct a clerical or arithmetical error. The Court on signing its judgment becomes functus officio and it cannot recall or review an order passed by it in view of the bar of Section 362 CrPC. However, in the present case, the order dated 8.9.2006 (Annexure P2) passed by the learned trial Magistrate is indeed not in consonance with the statements (Annexure P1 colly.) of the parties. Therefore, even if it is taken that the learned trial Magistrate could not revive the complaint in view of the bar created by Section 362 CrPC, this Court Crl. Misc. No. M-20202 of 2010 [7] in exercise of its inherent jurisdiction can correct the error in the interest of justice. The inherent jurisdiction in terms of Section 482 CrPC as is well-known can be exercised to prevent abuse of process of the Court or otherwise to secure the ends of justice. The statements of the parties were never intended to close the case or dismiss the complaint as having been compromised and it was for restarting the case in the event of default by the petitioner to adhere to the schedule. As such a mistake was committed by the learned trial Magistrate by dismissing the complaint as having been compromised. Therefore, a party is not to suffer for the fault or mistake of the Court as is well engrafted in the principle of actus curaie neminem gravabit (an act of the Court shall prejudice no man). This Court, in the circumstances, can certainly correct the error or mistake that has occurred, which is hereby corrected. It is ordered that the order dated 8.9.2006 (Annexure P2) passed by the learned Magistrate would in view of the statements made by the parties, be taken that the case had been adjourned sine die and it would not be taken to have been dismissed as withdrawn being compromised. In the circumstances, the defect or mistake which had occurred in the order having been corrected, the judgments referred to by the learned counsel for the petitioner would not apply. As regards the contentions of the learned counsel that the respondent did not sit down and settle the matter, it may be noticed that the petitioner in any case after payment of Rs.50,000/- on

8.9.2006 was liable to pay a sum of Rs.2,50,000/- i.e.Rs.50,000/- on

30.11.2006 and Rs.1 lac on 30.4.2007 and Rs.1 lac on 8.9.2007. The petitioner admittedly has not adhered to the said schedule and he has Crl. Misc. No. M-20202 of 2010 [8] paid Rs.50,000/- on 30.11.2006 and thereafter, paid another sum of Rs.60,000/- only. Therefore, for the failure of the petitioner to adhere to the schedule as agreed to by him, no benefit can be derived by him. In the circumstances, the present petition is disposed of and the order dated 8.9.2006 (Annexure P2) passed by the learned Magistrate instead of dismissing the complaint as withdrawn, it would read that in view of the statements of the parties, the complaint is adjourned sine die. Therefore, the order dated 25.5.2010 (Annexure P5) reviving the complaint shall be taken that the complaint case had been kept in abeyance and has now been revived. The complaint having not been dismissed as compromised as the order is now corrected, the proceedings may continue in accordance with the order dated 25.5.2010 (Annexure P5) passed by the learned Judicial Magistrate Ist Class, Mansa. (S.S. SARON) JUDGE July 16, 2010