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2024 DIGILAW 1445 (KER)

Subair M, S/o. Late Kunjayin v. State Of Kerala

2024-11-07

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings pursuant to Annexure.A1 Final Report in C.C. No.325/2018 on the files of the Judicial First Class Magistrate Court-V, Kozhikode arose out of Crime No.589/2017 of Feroke Police Station, Kozhikode. The petitioners herein are accused in the above case. 2. Heard the learned counsel for the petitioners, learned Public Prosecutor and the learned counsel appearing for the 3rd respondent/defacto complainant, in detail. Perused the relevant materials available. 3. In this matter, the prosecution alleges commission of offences punishable under Sections 498(A), 406, 323, 324, 506(ii) read with 34 of Indian Penal Code. 4. The learned counsel for the petitioners would submit that, the matrimonial discord in between the first petitioner and the third respondent has been settled as per Annexure-A2 agreement entered into between them on 16.07.2018, duly signed by the first petitioner and the third respondent attested by Sri.Raju P. Augustine, Advocate and Notary, Edakkad P.O., Calicut. Accordingly, Rs.3,00,000/-was assessed as the amount due towards third respondent for the value of gold ornaments obtained by the first petitioner and Rs.2,00,000/-(Rs.15,000/-+ Rs.1,85,000/-) was assessed as the amount entitled by the third respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act and the maintenance amount during the iddat period. Accordingly, Rs.5,00,000/-was entrusted to the third respondent and it was agreed to withdraw M.C. No.202/2017, O.P. No.664/2017, O.P. No.703/2017 and also the present case, viz. C.C. No.325/2018. Thereafter, the petitioners herein filed Crl.M.C. No.5825/2018 along with affidavit and vakalath filed by the third respondent, to quash the proceedings in C.C. No.325/2018 on the basis of settlement. But the third respondent retracted from the settlement and affidavit she filed. Accordingly, the counsel representing the third respondent in Crl.M.C.5825/2018 had relinquished the vakalath. As per Annexure-A6 order, the said Criminal Miscellaneous Case was dismissed as withdrawn, without prejudice to the right of the petitioners to initiate appropriate proceedings at a later stage. Accordingly, the submission of the learned counsel for the petitioners is that, the third respondent who, in fact, settled and agreed to withdraw the cases, is banking on the matter with a view to squeeze the petitioners to get more money. Accordingly, the submission of the learned counsel for the petitioners is that, the third respondent who, in fact, settled and agreed to withdraw the cases, is banking on the matter with a view to squeeze the petitioners to get more money. It is submitted further that, acting on Annexure-A2 agreement, admittedly signed by the third respondent, the quashment sought for is liable to be allowed. 5. Opposing quashment of the proceedings in view of Annexure-A2 agreement, the learned counsel appearing for the third respondent would submit that, even though, the third respondent signed Annexure-A2 agreement, she did not know the contents thereof and according to her 50 sovereigns of gold ornaments yet to be returned. Therefore, the matter would require trial to consider return of gold ornaments. The learned counsel for the third respondent also submitted that, the affidavit filed in the earlier Criminal Miscellaneous Case was not signed by the defacto complainant/third respondent. 6. Having appraised the rival arguments, the question arises for consideration is, whether a party to a mediation agreement could avoid its terms, without any challenge thereof? In this connection, I have perused Annexure-A2. Annexure-A2 would recite that, Rs.3,00,000/-was assessed as the amount due towards third respondent for the value of gold ornaments obtained by the first petitioner and Rs.2,00,000/-(Rs.15,000/-+ Rs.1,85,000/-) was assessed as the amount entitled by the third respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act and the maintenance amount during the iddat period. Accordingly, Rs.5,00,000/-was entrusted to the third respondent. Clause No.4 of Annexure-A2 is that, on receipt of Rs.5,00,000/-by the defacto complainant, it was agreed to withdraw M.C. No.202/2017, O.P. No.664/2017 and O.P. No.703/2017 filed for return of the gold ornaments and also to withdraw the present case, viz. C.C. No.325/2018. As per Annexures-A3 to A5, M.C. No.202/2017 and O.P. No.664/2017 were dismissed as not pressed on 06.08.2018 and most importantly, O.P. No.703/2017 filed for return of gold ornaments was also dismissed as not pressed. Thus, the third respondent herself acted upon Annexure.A2 as she was aware of the terms of the agreement, by not pressing the litigations, including O.P. No.703/2017, where the relief of return of gold ornaments was sought for, on getting Rs.3,00,000/-towards the said count, as part of settlement. Now, the third respondent took a U-turn to contend that, though she signed the agreement, she did not know the contents of the agreement. Now, the third respondent took a U-turn to contend that, though she signed the agreement, she did not know the contents of the agreement. It is relevant to note that, in terms of the agreement, though M.C. No.202/2017, O.P. No.664/2017 and O.P. No.703/2017 were dismissed as not pressed as on 06.08.2018, the third respondent did not raise any challenge against the same and the same would show that, she was aware of the terms of the agreement and accordingly, those cases were dismissed. 7. It is submitted by the learned counsel for the petitioner that, as per Clause No.6 of the agreement, Rs.2000/-fixed as the monthly maintenance of the child also has been paying regularly. 8. Now, the crucial question is, whether the contention raised by the third respondent, in deviation from Annexure-A2 agreement, simply on the ground that she did know the contents of the agreement, is a reason to disallow the prayer for quashment in view of the settlement? 9. As I have already pointed out, the third respondent not only signed the agreement, she received Rs.5,00,000/-admittedly and also she not pressed all the proceedings in view of the terms of the agreement, knowing the contents thereof. But, at a later point of time, she refused to consent quashment of the proceedings in C.C. No.325/2018, in terms of the agreement and thereby earlier Criminal Miscellaneous Case filed to quash the proceedings on the basis of settlement was withdrawn. 10. In the decision reported in Ashiya Ummal v. S.N. Sathy [2024 KHC OnLine 1 : 2024 KHC 1 : 2024 KER 19 : 2024 LiveLaw (Ker) 15 : ILR 2024 (1) Ker.441], this Court raised the questions in paragraph No.8 as under: 8. In view of the rival contentions, the substantial questions of law arise for consideration are: (i) whether challenge against a compromise decree is permissible by way of an appeal ? If so, on what grounds ? (ii) What is the legal effect of a compromise where a party did not sign ? (iii) If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise ? 11. (ii) What is the legal effect of a compromise where a party did not sign ? (iii) If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise ? 11. While answering the query, after referring the decisions of the Apex Court reported in Prasanta Kumar Sahoo v. Charulata Sahu [ 2023 (2) KLT 625 ] and Bryam Pestonji Gariwala v. Union Bank of India [ AIR 1991 SC 2234 ], this Court held in paragraph No.21 as under: 21. Thus the legal position can be summarised holding that after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by R.3A of O.23. As such a right has been given under R.1A(2) of O.43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. S.96(3) of the Code shall not be a bar to such an appeal because S.96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. 12. Here also there is a mediation agreement having the trappings of a civil court decree passed under Order 23 Rule 3 of Civil Procedure Code, the remedy of the party, who disputes the compromise is to file a petition challenging the compromise agreement as held in Ashiya Ummal’s case (supra). 13. In the instant case, the defacto complainant did not challenge the compromise agreement, in any manner and the same attained finality. Therefore, the defacto complainant could not contend against the terms of the compromise agreement, which attained finality to defeat the quashment on the ground of settlement. 14. On no stretch of imagination, this Court could found that, Annexure-A2 agreement or the terms thereof are not known to the third respondent, in any manner, when she acted upon the same, as evident from Annexures.A3 to A5. Thus, the contention raised by the third respondent to deviate from the mediation agreement, even without a challenge thereof till this moment, is not sustainable and she is bound by the agreement. If so, this Criminal Miscellaneous Case agreed to be withdrawn is liable to be quashed. Thus, the contention raised by the third respondent to deviate from the mediation agreement, even without a challenge thereof till this moment, is not sustainable and she is bound by the agreement. If so, this Criminal Miscellaneous Case agreed to be withdrawn is liable to be quashed. In the result, this petition stands allowed. All further proceedings pursuant to Annexure.A1 Final Report in C.C. No.325/2018 on the files of the Judicial First Class Magistrate Court-V, Kozhikode arose out of Crime No.589/2017 of Feroke Police Station, Kozhikode, as against the petitioners/accused, stand quashed.