Case :- APPLICATION U/S 482 No. - 14504 of 2009 Applicant :- Ram Singh & Another Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Lalit Kumar Shukla,Rajiv Gupta Counsel for Opposite Party :- Govt. Advocate,Kamini Pandey,Santosh Kumar Singh
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 12.5.2009 as well as the entire proceedings of Case No. 899/IX/2009 (State Vs. Niranjan and others),under Sections- 420, 467, 468, 471 I.P.C., Police Station Sadar Bazar, District- Mathura, pending in the court of Ist A.C.J.M. Mathura.
3. Earlier the matter had been referred to the Mediation Centre where the dispute between the parties had been settled through a settlement agreement dated 9.2.2010. Under that agreement, the applicants were to execute a sale deed and in lieu thereof they were received Rs.1,50,000/- from the opposite party no.2.
4. Admittedly, the applicants had executed the sale deed but the money has still not been paid to them.
5. However, it is also on record that a banker's cheque for Rs.1,50,000/- had been submitted during mediation proceedings that has been described as time barred.
6. On 01.11.2011 following order was passed by this Court:
"It is argued by the learned counsel for the applicants that mediation was successful and in terms of compromise opposite party no.2 had undertaken to pay Rs.1.50 lacs by demand draft to the vendee. A banker cheque of Rs.1.50 lacs in the name of applicant no.1 was deposited with the Mediation and Conciliation Centre. It is pointed out by the learned counsel for the applicants that the said banker cheque did not contain any date of issue and it has also become time barred. He has further pointed out that in terms of the compromise before the Mediation Centre the applicants have already withdrawn the civil suit pending between him and the opposite party no.2 and also executed the sale deed in favour of opposite party no.2. Opposite party no.2, in fact had cheated the applicants depositing a time barred banker cheque and without mentioning any date.
Registry shall send a notice through Chief Judicial Magistrate concerned to opposite party no.2 within one week fixing 28.11.2011 for his appearance before this Court.
List this case on 28.11.2011.
Till the next date of listing further proceedings of Case No.899/IX of 2009 (State Vs. Niranjan and others), under Sections 420,467,468,471IPC, P.S. Sadar Bazar, District
7. Thereafter on 24.2.2014 the below quoted order was passed in the present proceedings.
"Heard learned counsel for the parties and perused the record.
This is an application filed u/s 482 Cr.P.C. with the prayer for quashing the charge sheet, summoning order dated 12.5.2009 including entire proceedings of case no. 899/IX/09 State Vs. Niranjan and others under Sections 420, 467, 468, 471 I.P.C. P.S. Sadar Bazar, District Mathura.
Learned counsel for the applicants contended that there was registered agreement regarding sale deed of half share of land area 0.402 hectare in between the opposite party no.2 and one Niranjan, owner of land in question. Deed was registered in the office of Registrar Mathura on 3.7.2002. However, on the basis of registered agreement the sale deed was not executed, hence a suit for specific performance was filed by the opposite party no.2 before the Civil Court, and the F.I.R. was also lodged under Sections 420, 467, 468, 471 I.P.C., P.S. Sadar, District Mathura in which charged sheet was submitted by the police against the applicants. Hence present application was filed by the applicants Ram Singh and Chandra Prakash. Further contended that the matter was referred to the mediation center, as per report of the mediation center matter has been settled in between the parties. As per settlement a sale deed was executed by the applicants (vendee) in favour of the opposite party no.2 Awdhesh Khandelwal and the amount for a sum of Rs. 1,50,000/- has to be paid by the applicants for which the banker cheque a sum of Rs. 1,50,000/- was deposited. Though the period of validity of banker cheque has expired. Further contended that since the matter has already been settled in between the parties, as such no useful purpose would be served to continue the criminal proceeding, hence in the interest of justice the proceeding is liable to be quashed.
Considered the submission, and in view of the settlement, since the validity of banker cheque has expired, hence same shall be returned directly or though his counsel to the applicants and after renewal of the banker cheque same shall be deposited before the court concerned. If draft is deposited the same shall be given to Ram Singh and Chandra Prakash in view of the settlement.
Accordingly, in view of the settlement the proceedings of charge sheet, as well as summoning order dated 12.5.2009, including proceedings of case no. 899/IX/09 State Vs. Niranjan and others under Sections 420, 467, 468, 471 I.P.C. P.S. Sadar Bazar, District Mathura is hereby quashed.
Interim order, if any, stands discharged.
With these observations, Application filed under Section 482 Cr.P.C. is finally disposed off.
However, if the aforesaid draft is not deposited within 30 days, the opposite party no.2 will have remedy to file application for recall / modification of the order."
8. Thereafter on 26.4.2018 following order was passed by this Court:-
"Learned counsel for the parties are present.
The draft that was filed before this Court is still in record.
When the matter was finally disposed of on 24.2.2014, it was ordered by this Court that banker cheque shall be returned directly or though his counsel to the applicants and after renewal of the banker cheque same shall be deposited before the court concerned. It is further observed by this Court that if draft is deposited the same shall be given to Ram Singh and Chandra Prakash in view of the settlement.
It is submission of learned counsel for the applicants that this order was in the knowledge and has not paid the renewed draft. It is further submission of learned counsel for the applicants that opposite party no.2 was aware of the order and he has deliberately not taken the steps for renewal of banker cheque and accordingly the opposite party no.2 is also liable for payment of interest in this regard.
Learned counsel for opposite party no.2 submitted that at no point of time, the banker cheque was handed over to the applicant for his renewal and he was not aware of the order dated 24.2.2014.
Seeing the fact and circumstances of the case, it is ordered that banker cheque be handed over to the opposite party no.2 who will get it renewed and after renewal the same shall be deposited before this Court on the next date of listing.
Copy of banker cheque will be kept in the record.
Learned counsel for the applicants is directed to show as to when the opposite party no.2 got knowledge of the order dated 24.2.2014 and in case it is found that opposite party no.2 deliberately avoided the compliance of above referred order, a suitable direction regarding payment of interest can be passed.
List again on 14th May,2018."
9. While the applicants appear to have returned the aforesaid bankers cheque in compliance of the order dated 24.2.2014, it has been submitted that they are not willing to accept payment of Rs.1,50,000/-. Therefore, the application for recall has been filed seeking recall of the order dated 24.2.2014 by which order, the proceedings against the applicants had been quashed in view of the settlement reached between the parties.
10. It was the applicants who had approached this Court to quash the criminal proceedings initiated against them and it is also admitted that the proceedings had been quashed subject to the terms of the settlement agreement reached before the mediation centre being payment of Rs.1,50,000/-.
11. Admittedly, that amount had not been paid to the applicants for a long period of eight years. The reason for delay apart, today, the applicants are not willing to receive that payment though they have executed the sale deed in pursuance of the settlement agreement.
12. Since the applicants have not received the money under the settlement agreement and have thus not received any benefit and since the applicants are not willing to accept the amount of Rs.1,50,000/-, today, the settlement agreement has failed.
13. Also, since the settlement amount had not been paid to the applicants on the date of the order dated 24.2.2014, that order may not have been passed. In any case, since recall of that order would be to the detriment of the applicants as they had approached this Court for quashing the criminal prosecution, it appears proper to recall the order for non compliance of essential condition of the settlement on which basis that order was passed.
14. The order dated 24.2.2014 is recalled.
15. In view of the fact that the arguments advanced on behalf of the applicants on the merits of the matter involve factual aspects which cannot be decided without appraisal of evidence, no interference is warranted on merits.
16. However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
17. With the aforesaid directions, this application is finally
disposed of.
18. It is agreed between the parties that the bankers cheque No. 475492 for Rs.1,50,000/- drawn on Punjab and Sind Bank which is lying in the custody of Registrar General of this Court in compliance of the order dated 14.5.2018, may be returned to learned counsel for opposite party no.2.
Order Date :- 25.9.2018 Meenu