[1.0] As common question of law and facts arise in both these petitions and they are between the same parties, both these petitions are decided and disposed of together by this common judgment and order.
[2.0] Special Criminal Application No.1026/2008 has been preferred by the petitioner herein - original accused to quash and set aside the impugned criminal proceedings being Criminal Case No.2866/1993 pending in the Court of learned Chief Judicial Magistrate, Bhavnagar. It is also further prayed to quash and set aside the order dated 17.05.2008 passed by the learned JMFC, Bhavnagar directing to issue Non Bailable Warrant against the petitioner - accused.
[2.1] Special Criminal Application No.1027/2008 has been preferred by the petitioner herein - original accused to quash and set aside the impugned criminal proceedings being Criminal Case No.3805/1993 pending in the Court of learned Chief Judicial Magistrate, Bhavnagar. It is also further prayed to quash and set aside the order dated 17.05.2008 passed by the learned JMFC, Bhavnagar directing to issue Non Bailable Warrant against the petitioner - accused.
[3.0] That respondent No.2 - original complainant has filed the aforesaid impugned criminal complaints being Criminal Case Nos.2866/1993 and 3805/1993 in the Court of learned JMFC, Bhavnagar against the petitioner - accused for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") for dishonour of cheque Nos.579968; 579969 dated 10.04.1993 and 17.04.1993 for an amount of Rs.2,50,000/- each respectively as well as for dishonour of the cheque No.579970 dated 24.08.1993 for an amount of Rs.2,50,000/-. That the learned Magistrate has directed to issue summons against the accused person for offence under Section 138 of the NI Act as far as back in the month of August 1993. It appears that there was no further progress in the trial for more than 15 years due to absence of the accused persons. That in the month of January 2008, the petitioner submitted the exemption report and the learned JMFC rejected the said exemption application and issued Non Bailable Warrants against the petitioner. That being aggrieved and dissatisfied with the order passed by the learned Magistrate issuing Non Bailable Warrants against the petitioner on 23.01.2008, the petitioner preferred Criminal Revision Application No.16/2008 and other Revision Application Nos.17/2008 and 18/2008 before the learned Sessions Court, Bhavnagar and the learned Additional Sessions Judge, Bhavnagar by order dated 12.03.2008 dismissed the said Revision Applications and confirmed the order passed by the learned Magistrate issuing Non Bailable Warrants against the petitioner and the learned Magistrate was directed to complete the criminal cases within two months from the receipt of the Record & Proceedings by conducting them on day to day basis by marking the presence of the accused in the Court all throughout. It appears that thereafter when all efforts by the petitioner accused to delay the trial failed and there was no other alternative but to appear before the learned JMFC and proceed further with the trial, the petitioner entered into a Memorandum of Agreement with the complainant and agreed to make the payment of Rs.8 lacs on or before 31.03.2008, Rs.3 lacs on or before 21.04.2008 and Rs.8 lacs on or before 10.05.2008 towards his liability under the Criminal Case Nos.2865/1993, 2866/1993 and 3805/1993. That it was agreed under the MOA dated 25.03.2008 that complainant to withdraw one case on every payment as mentioned above. It appears that despite the fact that under the MOA, the petitioner was required to pay Rs.8 lacs on or before 31.03.2008, no amount was paid on or before the aforesaid date and paid Rs.5 lacs by demand draft and Rs.3 lacs by cash on 10.04.2008. It appears that despite the MOA dated 25.03.2008 and despite the late payment the complainant agreed to withdraw Criminal Case No.2865/1993 and submitted a pursis before the learned JMFC, Bhavnagar and consequently Criminal Case No.2865/1993 came to be disposed of as withdrawn. As stated herein above, under the MOA dated 25.03.2008, a further sum of Rs.3 lacs was required to be paid on or before 21.04.2008 and Rs.8 lacs was required to be paid on or before 10.05.2008, and despite the above the payment was not made as agreed under the MOA on or before the stipulated dates and despite the Revision Application against issuance of Non Bailable Warrants came to be dismissed, the learned Magistrate differed / postponed the execution of warrants till 21.04.2008 and therefore, the complainant submitted the application Exh.114 in Criminal Case No.2866/1993 and application Exh.115 in Criminal Case No.3805/1993 directing to issue fresh Non Bailable Warrants against the accused and the accused also submitted applications Exh.113 and 115 in Criminal Case No.2866/1993 and applications Exh.114 and 116 in Criminal Case No.3805/1993 to cancel the warrants. That the learned Magistrate by order dated 17.05.2008 dismissed the applications Exh.113 and 115 in Criminal Case No.3805/1993 and applications Exh.114 and 116 in Criminal Case No.2866/1993 and dismissed the applications Exh.114 and 116 in Criminal Case No.3805/1993 submitted by the petitioner - accused and allowed the applications Exh.114 in Criminal Case No.2866/1993 and application Exh.115 in Criminal Case No.3805/1993 and directed to issue Non Bailable Warrants against the petitioner making it returnable on 31.05.2008. That thereafter immediately the petitioner - original accused preferred the present Special Criminal Applications to quash and set aside the impugned criminal cases as well as to quash and set aside the order passed by the learned Magistrate directing to issue Non Bailable Warrants against the petitioner.
[4.0] Ms.
Kruti Shah, learned advocate appearing on behalf of the petitioner has submitted that in view of the settlement / MOA dated 25.03.2008 and the deposit of the entire amount now, the impugned criminal proceedings deserve to be quashed and set aside. It is submitted that it is true that there was some delay even in making the first installment. However, the petitioner paid Rs.5 lacs by Demand Draft and Rs.3 lacs by cash on 10.04.2008 which came to be accepted by the complainant and consequently withdrew Criminal Case No.2865/1993 and therefore, such a lapse came to be condoned by the complainant. It is further submitted that so far as the second installment of Rs.3 lacs dated 21.04.2008 is concerned, the petitioner was always ready and willing to make the said payment and infact tendered a demand draft of Rs.2,50,000/- dated 22.04.2008 and also tendered cash of Rs.50,000/- on 22.04.2008. However, surprisingly the complainant did not accept the same and has backed out from the MOA and has not withdrawn the criminal proceedings and therefore, it is requested to quash and set aside the impugned criminal proceedings. It is further submitted by Ms. Shah, learned advocate appearing on behalf of the petitioner that even the petitioner has now deposited the balance amount of Rs.11 lacs before this Court which was due and payable under the MOA dated 25.03.2008. It is submitted that therefore, to continue the criminal proceedings against the petitioner - accused would be abuse of process of law and the Court and unnecessary harassment to the petitioner and therefore, it is requested to quash and set aside the impugned complaints/criminal proceedings.
[4.1] Ms.
Kruti Shah, learned advocate appearing on behalf of the petitioner has also requested to quash and set aside the order passed by the learned Magistrate issuing Non Bailable Warrants against the petitioner as in view of the MOA and subsequent dispute, the matter could not be resolved and therefore, the petitioner did not remain present. It is submitted that now as the petitioner has deposited the remaining the amount due and payable under the MOA i.e. Rs.11 lacs pursuant to the interim order passed by this Court, it is requested to quash and set aside the Non Bailable Warrants against the petitioner.
[4.2] Ms.
Shah, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of R. Rajeshwari v. H.N. Jagadish reported in (2008) 4 SCC 82 in support of her prayer to quash and set aside the impugned complaints/criminal proceedings in view of the MOA dated 25.03.2008.
[5.0] Both these petitions are opposed by Shri D.M. Thakkar, learned advocate appearing on behalf of respondent No.2 - original complainant. It is submitted by him that as such the criminal complaints are of the year 1993 and even after a period of 15 years, there was no further progress in the trial as all throughout the accused did not remain present before the learned Magistrate. It is submitted that all sorts of delay tactics were adopted by the accused. It is submitted that thereafter, after the Non Bailable Warrants came to be issued by the learned Magistrate and thereafter when there was no further alternative but to appear before the learned Magistrate, accused entered into MOA with the complainant and as despite 15 years have passed, there was no progress in the trial, the complainant having tired even agreed to accept Rs.19 lacs i.e. the principal amount on an assurance given by the accused that Rs.8 lacs shall be paid on or before 31.03.2008, Rs.3 lacs shall be paid on or before 21.04.2008 and Rs.8 lacs shall be paid on or before 10.05.2008. It is submitted that even the first installment was not paid in time still on an assurance that the subsequent installments shall be paid in time and within the period mentioned in the MOA, the complainant condoned the first delay and withdrew the complaint being Criminal Case No.2865/1993. It is submitted that thereafter neither the second installment nor the third installment have been paid within time. It is submitted that even according to the accused, even the second installment which was required to be paid on or before 21.04.2008, the accused tendered the demand draft that too of Rs.2,50,000/- only on 22.04.2008. It is submitted that case on behalf of the accused that he was ready and willing to pay Rs.50,000/- by cash on 22.04.2008 is disputed by the complainant. It is further submitted that even the third installment which was of Rs.8 lacs and required to be paid on or before 10.05.2008 was never paid. Therefore, when the accused has not acted as per the MOA and has not made the payment as per the MOA, the impugned complaints/criminal cases are not required to be quashed and set aside as the settlement has failed. It is submitted that the cheques came to be dishonoured in 1993 and even there is loss of interest to the complainant still he agreed to accept Rs.19 lacs if the same would have been paid as per the schedule mentioned in the MOA. It is submitted that as the accused has not acted as per the MOA and has not made the payment as per the schedule mentioned in the MOA dated 25.03.2008, the settlement has failed and therefore, the impugned complaint/criminal proceedings are not required to be quashed and set aside on the basis of MOA which has failed.
[5.1] It is further submitted by Shri Thakkar, learned advocate appearing on behalf of the original complainant that in view of the dismissal of Revision Applications by the learned Revisional Court confirming the earlier order passed by the learned Magistrate issuing Non Bailable Warrants against the petitioner and the said order has attained finality, the learned Magistrate has not committed any error and/or illegality in directing to issue fresh Non Bailable Warrants against him. It is submitted that the complaints are of the year 1993 and till 2008, all efforts were made by the accused to delay the trial and despite the service of summonses, for 15 years he delayed the trial and therefore, the learned Magistrate is justified in issuing Non Bailable Warrants against the petitioner. Making above submissions, it is requested to dismiss the present petitions.
[5.2] Shri L.B.
Dabhi, learned Additional Public Prosecutor has supported the submissions made on behalf of respondent No.2 and has further submitted that no illegality has been committed by the learned Magistrate in issuing Non Bailable Warrants against the petitioner in the criminal cases for the offences under Section 138 of the NI Act which are of the year 1993.
[6.0] Heard the learned advocates appearing for respective parties at length. At the outset it is required to be noted that the impugned complaints/criminal proceedings are sought to be quashed and set aside solely on the basis of the settlement/MOA dated 25.03.2008. It is the case on behalf of the petitioner - accused that in view of the MOA dated 25.03.2008, the complainant was required to withdraw the complaints and therefore, now when the entire amount is paid, the criminal proceedings deserve to be quashed and set aside. It is required to be noted that under the MOA, the accused was required to pay in all Rs.19 lacs with respect to three complaints and it was agreed by the accused to pay Rs.8 lacs on or before 31.03.2008; Rs.3 lacs on or before 21.04.2008 and Rs.8 lacs on or before 10.05.2008. It appears that the complaints were of the year 1993 and there was no progress in the trial and therefore, the complainant agreed to accept the aforesaid amount and to withdraw the complaints if the amount is paid to the complainant as per the schedule mentioned in the MOA dated 25.03.2008, otherwise, there was no reason for the complainant to agree for the same as he was losing the interest and the cheques which were dishonoured were of the year 1993. Considering the facts and circumstances, it appears that the accused had not made the payment under the MOA as per the schedule mentioned in the MOA dated 25.03.2008 and therefore, the petitioner - accused has not acted as per the settlement/MOA dated 25.03.2008 and therefore, the settlement has failed and the complainant is justified in not withdrawing the complaints. It is required to be noted at this stage that if the learned Magistrate would not have issued the Non Bailable Warrants in the year 2008 against the petitioner and if the Revision Applications would not have been dismissed, the accused even would not have entered into the MOA dated 25.03.2008. When it was found that there is no other alternative but to appear before the Magistrate and proceed further with the trial, the accused entered into the MOA. It is also required to be noted at this stage that even the first installment was paid belatedly, still the complainant under the hope and assurance that rest of the installments under the MOA shall be paid as per the schedule condoned the lapse, and withdrew the first complaint. However, when even thereafter also, the second and third installments are not paid as per the schedule and even the 3rd installment was not paid at all, the complainant is justified in not withdrawing the complaints. Under the circumstances, when the accused has not acted as per the MOA and has not made the payment as per the schedule mentioned under the MOA dated 25.03.2008, relying upon the said MOA the prayer of the petitioner to quash and set aside the impugned criminal proceedings cannot be granted. Under the circumstances, the decision of the Hon'ble Supreme Court in the case of R. Rajeshwari (Supra) relied upon by the learned advocate appearing on behalf of the petitioner will not be applicable to the facts of the present case.
[6.1] Now, so far as the case on behalf of the petitioner that he has deposited the remaining amount of Rs.11 lacs and therefore, to quash and set aside the impugned criminal proceedings is concerned, it is required to be noted that the said amount has been deposited by the petitioner herein pursuant to the interim order passed by this Court while staying the Non Bailable Warrants. Therefore, merely because remaining amount has been deposited subsequently, that too pursuant to the interim order passed by this Court, the impugned complaints are not required to be quashed and set aside.
[6.2] Now, so far as the prayer of the petitioner to quash and set aside the Non Bailable Warrants are concerned, considering the fact that the criminal complaints are of the year 1993 and all attempts were made by the petitioner - accused to delay the trial and even the earlier order passed by the learned Magistrate issuing Non Bailable Warrants came to be confirmed by the Revisional Court and the said orders have become final, the learned Magistrate is justified in directing to issue fresh Non Bailable Warrants against the petitioner to secure the presence of the accused so that the criminal complaints for the offence under Section 138 of NI Act may proceed further. Magistrate cannot wait for indefinite period as, as such he has already waited for 15 years and only thereafter he issued Non Bailable Warrants which came to be confirmed by the Revisional Court. Under the circumstances, prayer of the petitioner to quash and set aside the Non Bailable Warrants cannot be said to be illegal and/or contrary to the provisions of the statutes which requires to be quashed and set aside in exercise of powers under Article 227 of the Constitution of India.
[7.0] In view of the above and for the reasons stated above, both the petitions fail and the same deserve to be dismissed and are, accordingly, dismissed. Rule is discharged in both the petitions. Ad-interim relief granted earlier stands vacated forthwith. The amount of Rs.11 lacs deposited by the petitioner pursuant to the interim order passed by this Court in present Special Criminal Applications, which is deposited with the Registry of this Court is ordered to be transferred to the Court of learned JMFC, Bhavnagar, which shall be dealt with in accordance with law and on merits at the conclusion of the trial.
(M.R.
Shah, J.) menon