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2018 DIGILAW 482 (JK)

Rajesh Dogra v. Om Parkash

2018-07-06

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. These two petitions under section 561-A Cr. P. C. seek quashing of two complaints filed against the petitioner (accused) by the respondent (complainant) under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). The complaint in 561-A No. 109/2011 relates to cheque No. 181092 dated 20.12.2009 and cheque No. 181093 dated 10.01.2010, each valuing Rs. 50,000/- drawn on Andhra Bank Branch, Jammu and the complaint in 561-A No. 110/2011 relates to cheque No. 181094 dated 10.01.2010 valuing Rs. 1,00000/- drawn on Andhra Bank Branch, Jammu too. These cheques are alleged to have been dishonored by the Bank for insufficient funds in the account of the petitioner (accused). 2. Heard learned counsel for the parties and perused the record. 3. It emerges as common ground of both the sides that in regard to the said three cheques and one more a complaint dated 07.04.2010 was submitted by the respondent (complainant) to the Hon’ble Chief Justice of the High Court for disciplinary action against the petitioner, who is an Advocate by profession. A copy each of this complaint is annexed as annexure-K in both these petitions. The said complaint, however, was withdrawn by the respondent by virtue of order dated 27.08.2010 passed by the Disciplinary Committee of the High Court in view of a compromise arrived at between the parties. Copies of the order passed by the Disciplinary Committee on 27.08.2010 and the statement made by the respondent (Complainant) before the Disciplinary Committee on that day have been produced as annexures “M and N” in each of these petitions. In his statement recorded by the Disciplinary Committee, the respondent has stated that he has entered into compromise with the petitioner (accused) after receiving an amount of Rs. 1,50,000/- from him and was not interested in prosecution of the complaint. 4. It is noticed that the complaint for taking disciplinary action against the petitioner was filed by the respondent (complainant) in April, 2010 and the complaints under section 138 of the NIA Act were filed by him on 13.05.2010. The complaint for disciplinary action was dismissed on the basis of compromise arrived at between the parties on 27.08.2010. 4. It is noticed that the complaint for taking disciplinary action against the petitioner was filed by the respondent (complainant) in April, 2010 and the complaints under section 138 of the NIA Act were filed by him on 13.05.2010. The complaint for disciplinary action was dismissed on the basis of compromise arrived at between the parties on 27.08.2010. It is, thus, clear that the parties had entered into a compromise at a time when the complaints on both the scores, that is, under section 138 of the Act and for the disciplinary action, were pending adjudication. Pursuant to the compromise, respondent (complainant) withdrew the complaint seeking disciplinary action against the petitioner but did not withdrew the complaints under section 138 of the Act, compelling the petitioner to approach this Court. 5. The question that came up for consideration today is, whether the trial in the complaints should be allowed to continue even after the compromise between the parties. 6. The learned counsel for the petitioner submitted that the compromise was arrived at between the parties after the undisputed amount payable by the petitioner, was paid by him to the respondent and the respondent was supposed to withdraw all the complaints but he did not withdraw the complaints under section 138 of the NIA Act compelling the petitioner to knock at the door of this Court. 7. On the other hand, learned counsel for the respondent submitted that respondent never intending to exonerate the petitioner of the offence under section 138 of the NIA Act committed by him and the compromise was made only to withdraw the disciplinary proceedings before this Court. 8. On according consideration to the facts and surrounding circumstances of the case, I am not persuaded to accept the submission raised on behalf of the respondent. The dispute primarily related to the recovery of certain amounts by the petitioner from the respondent. This dispute was settled not by virtue of a simple compromise between the parties but in lieu of payment of Rs. 1,50,000/- paid by the petitioner to the respondent, which is evident from the statement of the respondent recorded by the Disciplinary Committee (supra). The dispute primarily related to the recovery of certain amounts by the petitioner from the respondent. This dispute was settled not by virtue of a simple compromise between the parties but in lieu of payment of Rs. 1,50,000/- paid by the petitioner to the respondent, which is evident from the statement of the respondent recorded by the Disciplinary Committee (supra). It cannot be believed that the petitioner would have paid the said amount to the respondent only for the purpose of withdrawal of the complaint for disciplinary action and would have agreed to the continuation of the complaints under section 138 of the Act. It needs to be understood that offence under section 138 of the Act is a compoundable offence, having a reasonable scope for compromise, if the liability against the cheque, which was dishonored, is cleared. The respondent having entered into a compromise during the pendency of the impugned complaints in lieu of receipt of money by him from the petitioner, his insisting upon the continuation of trial in the complaints would be nothing but the abuse of the process of the Court, which needs to be prevented. 9. Viewed thus, this is a fit case where the complaints and the proceedings therein should be quashed in exercise of inherent jurisdiction of this Court under section 561-A Cr. P.C. Both the complaints are, therefore, now quashed. 10. Quashing of the complaints, however, will not prevent the respondent from pursuing any civil remedy, if so advised. 11. Disposed of.