Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 724 (JK)

Mohammad Ashraf Wani v. Muzamil Bashir

2017-08-23

SANJEEV KUMAR

body2017
JUDGMENT : SANJEEV KUMAR, J. 1. Briefly stated, the facts of the case are that the respondent filed three complaints before the Chief Judicial Magistrate, Sopore on 22nd November, 2014 against the petitioner under Section 138 of Negotiable Instrument Act (hereafter for short 'the N.I. Act'). While the three aforesaid complaints were pending adjudication, the petitioner entered into the compromise with the respondent, in which he agreed to pay sum of Rs. 35,50,000/-(Rupees Thirty five Lac and Fifty Thousand only) to the respondent by the end of June, 2015. Accordingly, the settlement/compromise deed was executed, notarized and placed before the Chief Judicial Magistrate. 2. Taking cognizance of the compromise deed, the learned Judicial Magistrate dismissed the two complaints (Complaint No. 9-A/N and 12-A/N) and the petitioner-accused was acquitted of the charges under section 138 of the N.I. Act. However, the 3rd complaint i.e Complaint No. 50/N was ordered to continue and was posted for further proceedings. 3. It appears that the petitioner did not fulfil his promise and did not pay the amount as agreed to by him, as such, the respondent approached the court of the learned Chief Judicial Magistrate with an application for revival of those two complaints, which were earlier dismissed in view of the settlement/compromise arrived at between the parties. The aforesaid application was entertained by the learned Chief Judicial Magistrate and notice was issued to the petitioner. It further transpires that due to the non-appearance of the petitioner, even warrants were ordered to be issued against him. Aggrieved, the petitioner has come to this Court through the medium of this petition which he has filed under Section 104 of the Constitution of Jammu & Kashmir. In the petition he has challenged the proceedings undertaken by the Chief Judicial Magistrate for revival of two complaints and also the warrants issued against him by the learned Chief Judicial Magistrate, Sopore. 4. Challenge to the proceedings is made on the sole ground that under Section 369 Cr.P.C, 1973 the criminal courts have no power to alter or review any order or judgment after it has been signed, except to correct clerical error. 5. Heard learned counsel for the parties. Perused the record. 6. Undisputedly out of three complaints filed by the respondents against the petitioner, two complaints have been dismissed and the petitioner has been acquitted of the charges under section 138 of the N.I. Act. 5. Heard learned counsel for the parties. Perused the record. 6. Undisputedly out of three complaints filed by the respondents against the petitioner, two complaints have been dismissed and the petitioner has been acquitted of the charges under section 138 of the N.I. Act. This has been done by the learned Magistrate pursuant to a compromise/settlement arrived at between the petitioner and the respondent. 7. As noted above, on account of alleged failure of the settlement, the respondent moved application for revival of the complaints earlier dismissed on the ground that the petitioner had failed to fulfil the commitment made by him, on the basis of which, the two complaints were dismissed by the court. The application for revival of the complaints which have been dismissed is essentially an application seeking review of the order passed by the learned Chief Judicial Magistrate. As is rightly contended by the counsel for the petitioner, in terms of section 369 of Cr.P.C, 1973 the court has no power to alter or review the order or judgment once signed except to correct clerical error. For reference section 369 of Cr.P.C , 1973is reproduced here as under:- "369. Court not to alter judgment-Save as otherwise provided by this Code or by any other law for the time being in force, in the case of the High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical error." 8. From the perusal of the provisions of Section 369 Cr.P.C, 1973and the law laid down by the Hon'ble Apex Court in the case Adalat Prasad v. Rooplal Jindal (2004) 7 Supreme Court Cases 338, the issue as to whether the criminal court has power to review or alter its judgment after it has been signed, is no longer res integra. The aforesaid view has been reiterated by the Apex Court in subsequent judgments (2008) 2 SCC 705 and (2014) 2 SCC 246 . 9. In view of the clear dictum of law and expression by the Hon'ble Supreme Court and the provisions of section 369 of the Cr.P.C, 1973 the proceedings before the learned Chief Judicial Magistrate for revival of the complaints which have since been dismissed, is nothing but sheer abuse of process of law. 9. In view of the clear dictum of law and expression by the Hon'ble Supreme Court and the provisions of section 369 of the Cr.P.C, 1973 the proceedings before the learned Chief Judicial Magistrate for revival of the complaints which have since been dismissed, is nothing but sheer abuse of process of law. The proceedings pending before the Chief Judicial Magistrate in revival application filed to revive the complaints filed under No. 9-A/N and 12-A/N titled Muzamil Bashir v. Mohammad Ashraf Wani are, therefore, quashed. Respondent, however, is at liberty to take appropriate remedies against the dismissal of the complaints, if he is so advised. 10. Learned counsel for the respondents has submitted that there is an application filed by him for initiating proceedings of perjury against the petitioner. 11. Let it be made clear that this Court has not expressed any opinion on the aforesaid application. The respondent, if still interested to pursue, can initiate fresh proceedings against the petitioner. 12. Disposed of along with all connected MPs.