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2022 DIGILAW 1197 (GAU)

Fatema Begum v. State Of Assam

2022-11-01

ARUN DEV CHOUDHURY

body2022
JUDGMENT : Heard Mr. K. Agarwal, learned Senior Counsel assisted by Ms. P. Neog, learned counsel for the petitioner. Also heard Mr. K. Bhattacharya, learned counsel for the private respondent and Mr. A. K. Das, learned counsel representing the State of Assam. 2. The present revision petition under Section 397/401/482 of Cr.P.C. is filed assailing the judgment and order dated 31.10.2011 passed by the learned Additional Sessions Judge, Kamrup in Crl. Appeal No. 53/2010 and Cr the Criminal Revision No. 77/2010 confirming and upholding the judgment and order dated 19.06.2010 passed by the learned Magistrate 1st Class, Guwahati in C.R. Case No. 4594/2006, whereby the present petitioner was convicted for offences under Section 138 of the Negotiable Instruments Act, 1881 and directed to pay a sum of Rs. 5,00,000/-(five Lakhs) being the cheque amount along with the compensation of another Rs. 1,00,000/-(one lakh) under Section 357 of the Cr.P.C. in default to undergo S.I. for one year. 3. It is submitted that during the pendency of this proceeding, both the claimant and the respondent entered into an agreement of compromise on 03.05.2017. A copy of such agreement is produced by Mr. K. Agarwal, learned Senior Counsel and Mr. K Bhattacharya, learned counsel has also submitted that this is the agreement on the basis of which the parties had mutually settled the dispute and this revision petition may be disposed of and the petitioner may be acquitted on the basis of such compromise deed. 4. The relevant portion of the compromise deed is quoted herein below:- “2) That the aforesaid payment of 4 lakhs will be made in instalments of Rs. 1 lakh on every alternative months in cash and it has been agreed that the First Party will made the payment of 1st instalment of Rs. 2 lakh on 29.04.2017, the 2nd instalment on 30.06.2017, 3rd instalment on 29.08.2017. 2A) That on execution of this agreement and on payment of the 1st instalment of Rs. 1 lakh, both the parties will file a joint petition in Criminal Revision Petition No. 86/2012, Money Execution Case No. 04/2015 and C.R.P. No. 454/2016 along with a copy of this agreement appraising the Hon’ble Court about the settlement arrived at by both the parties and to make a prayer to keep in abeyance the proceedings of the three case till the final payment is made. 3) That on completion of the payment of Rs. 3) That on completion of the payment of Rs. 4 lakhs by the First Party to the Second Party, both the parties will file a joint petition- (i) In Criminal Revision Petition No. 86/2012 with a prayer to set aside the Judgment and Order dated 19.06.2010 and Judgment and Order dated 31.10.2011 and disposed off the case being compromised, (ii) In C.R.P. No. 454/2016 with a prayer to direct the Execution Court to accept the compromise and order satisfaction of the decree passed in the Money Suit No. 26/2007, and (iii) In the Money Execution Case No. 04/2015 with a prayer to record the satisfaction of the decree on payment of the aforesaid amount of Rs. 4 lakhs”. 5. It is also submitted by Mr. Bhattacharya, learned counsel that pursuant to the compromise settlement, all payment has been made and no liability is due as on date. In view of the aforesaid, both the learned counsel has prayed that this revision petition may be closed on the basis of settlement arrived at by both the parties. 6. In the aforesaid backdrop, this Court is now to decide whether this is a fit case where this Court can exercise its inherent power under Section 482 of Cr.P.C. to quash the judgment and order dated 31.10.2011 passed by the learned Additional Sessions Judge, Kamrup in Crl. Appeal No. 53/2010 and the Criminal Revision No. 77/2010 confirming and upholding the judgment and order dated 19.06.2010 passed by the learned Magistrate 1st Class, Guwahati in C.R. Case No. 4594/2006. 7. It is by now settled that a High Court in exercise of its power under Section 482 of Cr.P.C. can very well quash a criminal proceeding or a criminal complaint under Section 482 of Cr.P.C., but while doing so, the Court is to follow certain principles as enunciated by the Hon’ble Apex Court in Gian Singh –Vs-State of Punjab and Another reported in 2012 10 SCC 303 , and in State of Madhya Pradesh –Vs-Laxmi Narayan and Others reported in 2019 5 SCC 688 . 8. In the case of State of Madhya Pradesh & Laxmi Narayan, reported in AIR 2019 SC 1296 , the Hon’ble Supreme Court has laid down certain guidelines for exercise of powers under Section 482 Cr.P.C., it is submitted that instant case falls within the guidelines laid down by the Hon’ble Supreme Court. 9. 8. In the case of State of Madhya Pradesh & Laxmi Narayan, reported in AIR 2019 SC 1296 , the Hon’ble Supreme Court has laid down certain guidelines for exercise of powers under Section 482 Cr.P.C., it is submitted that instant case falls within the guidelines laid down by the Hon’ble Supreme Court. 9. For ready reference, paragraph-13 of State of Madhya Pradesh & Laxmi Narayan (Supra) is extracted herein below: “13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under: i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.” 10. The materials available on record discloses that the present case is overwhelmingly and predominately civil in character inasmuch as arises out of commercial transaction and the parties have resolved their dispute between themselves, and therefore, this Court is of the considered opinion that this is a fit case, where this Court should exercise its inherent power under Section 482 of Cr.P.C. to quash the judgment and order dated 31.10.2011 passed by the learned Additional Sessions Judge, Kamrup in Crl. Appeal No. 53/2010 and Cr the Criminal Revision No. 77/2010 confirming and upholding the judgment and order dated 19.06.2010 passed by the learned Magistrate 1st Class, Guwahati in C.R. Case No. 4594/2006. 11. Appeal No. 53/2010 and Cr the Criminal Revision No. 77/2010 confirming and upholding the judgment and order dated 19.06.2010 passed by the learned Magistrate 1st Class, Guwahati in C.R. Case No. 4594/2006. 11. Accordingly, this revision petition is allowed by setting aside and quashing the judgment and order dated 31.10.2011 passed by the learned Additional Sessions Judge, Kamrup in Crl. Appeal No. 53/2010 and Cr the Criminal Revision No. 77/2010 confirming and upholding the judgment and order dated 19.06.2010 passed by the learned Magistrate 1st Class, Guwahati in C.R. Case No. 4594/2006.