IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Shiyas K.B - Petitioner
Versus
Manoj Paul - Respondent
I.A.Nos.533 & 564, 534 & 565, 535 & 562, 193 & 563 of 2018 in O.P.(Crl) No.168, 218, 219, 220 of 2017
Decided On : 10-04-2018
The Constitution of India- Article 227-Criminal Procedure Code- Sections 362, 482-While considering the interplay between the provisions under Secs.362 & 482 of the Cr.P.C, that the exercise of jurisdiction under Sec.482 of the Cr.P.C would be warranted only in some rare cases so as to recall the judgment where the High Court may do so, when a judgment has been obtained by practising fraud and in such a situation the specific statutory powers under Sec.362 of the Cr.P.C will not affect the powers of High court conferred under Sec.482 of the Cr.P.C for recalling the judgment on the ground of fraud, etc
Statement of facts:
The prayers in the above Original Petitions (Criminal) filed by the 1st respondent in the above I.As. under the enabling provisions contained in Article 227 of the Constitution of India are for directions to the competent Judicial Magistrate concerned to keep in abeyance all further proceedings in respect of the four private criminal complaints concerned in these cases for the offences punishable under Sec.138 of the Negotiable Instruments Act.
Finding of the court:
Not even a single paise has been paid by the accused to the complainants, it is only to be held that the accused had made submission that he would pay Rs.45 lakhs to the complainants both before the mediation centre as well as this Court as recorded in this Court's judgment knowing fully well that he would not honour such payments- Court is constrained to recall the impugned common judgment dated 2.6.2017 rendered in these 4 Original Petitions (Crl) and it is so accordingly ordered.
Result: Original Petitions (Crl) are ordered
1. The prayers in the above Original Petitions (Criminal) filed by the 1st respondent in the above I.As. under the enabling provisions contained in Article 227 of the Constitution of India are for directions to the competent Judicial Magistrate concerned to keep in abeyance all further proceedings in respect of the four private criminal complaints concerned in these cases for the offences punishable under Sec.138 of the Negotiable Instruments Act.
2. During the pendency of the above Original Petitions, at the request of the parties they were referred for settling the disputes through the Kerala State Mediation and Conciliation Centre, attached to this Court. The 1st respondent in the above I.As. had instituted some First Information Statements before the Police authorities concerned alleging certain offences against the applicants in the I.As. and some crimes were thus registered against the respondents in the O.Ps. (Crl.)/applicants in the present I.As. on the basis of such proceedings set in motion by the 1st respondent in the I.As. During the course of mediation proceedings, both sides agreed to settle the disputes whereby as against the total amount of Rs.50,10,000/- covered in respect of the four impugned complaints for the offence under Sec.138 of the Negotiable Instruments Act, the 1st respondent in the I.As./petitioner in the O.Ps./accused in the complaints had agreed to pay a total sum of Rs.45 lakhs to the respondents in the O.Ps./applicants in the present I.As. (complainants) in full and final settlement of the amounts due in those transactions. The 1st respondent in the I.As. had also agreed to withdraw the complaints lodged by him against the above complainants, etc. It was agreed that the above said amount of Rs.45 lakhs will be paid within three months, i.e., on or before 31.8.2017 without fail and that if the amounts are not paid, the complainants are at liberty to execute the agreement and get the amount of Rs.45 lakhs with interest @ 12% per annum till the date of realisation and the parties further agreed that no further deprecation exists between them in this regard and no further claim shall be lodged. The above said mediation agreement dated 29.5.2017 was made available by the Mediation Centre for the perusal of this Court and both sides submitted that this Court may record the mediation agreement and may pass necessary orders in the light of the mediation agreement, so as to quash the criminal proceedings impugned in these O.Ps. and also granting liberty to the complainants to initiate appropriate proceedings for quashment of the crimes registered against them at the behest of the accused in the above complaints. It was also agreed to by the learned counsel appearing for the accused that in the event of the complainants filing a petition for quashment of the above-referred crimes, then he would support the prayer for quashment in the light of the mediation agreement, etc. Thus, with the consent of both sides and in the light of the above said mediation agreement dated 29.5.2017, this Court had passed a common judgment dated 2.6.2017 finally disposing of the above Original Petitions (Criminal) with the following directions :
“(i) These matters are disposed of in the light of the provisions contained in the mediation agreement and further on the basis of the submission made by both parties.
(ii) The 1st respondent herein will be at liberty to file appropriate application for quashing the proceedings in the crime registered as Crime No.3473/2016 of Aluva Police Station, in which the present petitioner is the defacto complainant and the submission on both sides that the petitioner herein will also support the plea for quashment of those proceedings is also recorded.
(iii) In terms of clause (5) of the mediation agreement, it is ordered that in the light of the said mediation agreement, no further litigation exists between the parties in that regard and no claim will be lodged. However, it is made clear th
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