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TMI Blog2008 (3) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 to the bank on 15.9.1996. Appellant was informed in regard to the dishonour of the cheque on 28.9.1996. The learned Chief Judicial Magistrate, by a judgment and order dated 1.6.2000, found the respondent guilty for commission of an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.2,00,000/- and in default to suffer simple imprisonment for one mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 deposited in the above case in compliance of the interim order. 3. The respondent has agreed not to claim any other amount as determined by the court below and also withdraw his contention and the charges made against the petitioner before the trial court and has no objection to whatsoever to acquit the alleged offences. 4. The respondent further agreed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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." Proceeding sheet dated 19.12.2005 states : "The petitioner-accused Sri H.N. Jagadish is present in person as well as the respondent complainant Smt. R. Rajeshwari is also present. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 despite the bar contained in Section 362 of the Code of Criminal Procedure. 12. Negotiable Instruments Act is a special Act. Section 147 of the Act provides for a non obstente clause, stating : &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted 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 of the case on 13.11.69. The petitioner/respondent had to file it by 17.12.69 but that was not filed and the appeal was therefore, set down ex parte again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 application are true and correct to the best of my knowledge, belief and information." Verification of such an affidavit affi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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