9911796707
TMI Blog2008 (3) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. 2. Interpretation of the provisions of Section 147 of the Negotiable Instruments Act, vis- -vis Section 320 of the Code of Criminal Procedure is involved in this appeal which arises out of judgments and orders dated 5.9.2005 and 27.1.2006 passed by the High Court of Karnataka. 3. The aforementioned orders were passed in the following factual matrix : 4. Appellant filed a complaint petition against the respondent herein, inter alia, alleging that he had advanced a sum of Rs.4,35,000/-. For the purpose of repayment therefor, five cheques were issued. Three cheques were honoured but two were dishonoured. The subject matter of the complaint petition was a cheque issued by the respondent for a sum of Rs.1,00,000/- which was presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat counsel for the parties expressed their intention to settle the matter. On a prayer made in that behalf, the Revision Application was adjourned. 7. The parties allegedly entered into a compromise. A compromise petition was filed in terms of Section 147 of the Negotiable Instruments Act, the terms whereof are : "1. With intravension of well wishers and friends the parties to the above case, have decided to settle their difference amicably. 2. The petitioner agreed to pay the cheque amount sum of Rs.1,00,000/- (Rupees one lakh only) accordingly the petitioner today is paying sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in addition to the amount of Rs.75,000/- (Rupees Seventy Five Thousand only) already deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel Sri N.R. Naik. The revision petitioner is granted one-week time to deposit the fine amount before the Trial Court." 9. Inter alia, on the premise that such a proposal made by her lawyer to her had expressly been rejected and he was instructed to argue the matter on merit, an application for recall of the said order dated 5.9.2005 was filed. The said application was listed before the learned Judge on 16.12.2005, when it was ordered : "Counsel for the Petitioner and the Counsel Sri N.R. Naik for the respondent as well as the counsel for the applicant are present. Sri N.R. Naik submits that the amount of Rs.30,000/- reported on 5.9.2005 will be paid before the Court on 19.12.2005. As request, call on 19.12.2005." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 362 of Cr.P.C." 11. Mr. Bhat, learned counsel appearing on behalf of the appellant, submitted that keeping in view the provisions contained in Section 4 read with Section 320 of the Code of Criminal Procedure, it is evident that no terms of settlement could have been filed before the High Court as express instructions issued in that behalf were not given by the appellant to the lawyer. It was urged that the conduct of the lawyer as also the subsequent events would categorically show that the said consent terms were filed by the counsel without any instructions for the appellant. It was furthermore submitted that when a fraud of this nature is practiced upon the court, the court is not denuded of its power to recall its order de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is binding on the petitioner. From what has been stated above it would be clear that the petitioner was not averse to the idea of compromise. He only wanted the amount to be paid to him to be raised above four thousand rupees which was originally suggested. It also appears that in pursuance of a stay order passed in this case the petitioner has been receiving half of his wages throughout. He does not specifically deny the receipt of a cheque for Rs.4000/- sent by Mr. Mukherjee. It cannot therefore be accepted that he was under the impression, as he now tries to make out, that what he was receiving was arrears of past wages deposited in the Court in compliance with the Court s order. The advocate for the appellant had filed the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a clerical or arithmetical error." 15. In view of the aforementioned specific bar created in regard to exercise of the jurisdiction of the High Court to review its own order, we are of the opinion that ordinarily exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted. We assume that in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud but it does not appear that such a case has been made out. Appellant did not make any complaint against his lawyer. She did not even implead her lawyer as a party. The affidavit affirmed in support of the application verified as under : "That the averments made in paragraphs 1 to 8 of the accompanying applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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