TMI Blog2017 (12) TMI 1837X X X X Extracts X X X X X X X X Extracts X X X X ..... d after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 10.3.2017, passed by this Court in Criminal Revision No.394 of 2015, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. - Cr.MP No.1198 of 2017 In Cr. Revision No. 394 of 2015 - - - Dated:- 1-12-2017 - HON BLE MR. JUSTICE SANDEEP SHARMA, JUDGE. For the Petitioner : Mr. Manohar Lal Sharma, Advocate. For the Respondent : Mr. Hamender Singh Chandel, Advocate. ORDER Sandeep Sharma, J. (Oral) By way of instant application filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner/Accused/Applicant, for recalling judgment, dated 10.03.2017, passed by this Court, whereby judgment of conviction, dated 27.11.2014, passed by learned Judicial Magistrate, 1st Class, Solan, District Solan, H.P., in Criminal complaint No.193/3 of 2014/10, came to be upheld. 2. Respondent/Non-applicant (for short the Complainant ), who had advanced loan to the tune of ₹ 4,00,000/- to the petitioner/applicant/accused ( for short the Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused with the learned trial Court in execution proceedings initiated at the behest of the respondent- complainant, which shall also be released in favour of the respondent/complainant. 7. Learned counsel representing the parties, on instructions, received from their respective clients, who are present in the Court, stated that in view of amicable settlement arrived inter se the parties, complainant-respondent intends to withdraw his complaint filed under Section 138 of the Act. However, Mr. Hamender Singh Chandel, Advocate, while making aforesaid submission, contended that since the respondent/complainant was unnecessarily dragged into litigation, he may be awarded some reasonable compensation on account of litigation charges. 8. Before acceding to aforesaid joint request having been made by learned counsel for the respective parties, moot question arise for determination of this Court is whether it has power to review/recall its own order/judgment passed in Criminal Revision No.394 of 2015, wherein judgment of conviction recorded by both the Courts below came to be upheld. 9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has invited attention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent- complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled. Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under Section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom. 10. Reliance is also placed upon the judgment passed by Hon ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon ble High Court of Gujarat. In the aforesaid judgment, Hon ble Gujarat High Court, has reiterated that judgment passed by the High Court affirming the judgment of conviction recorded under Section 138 of the Act, can be recalled in view of the specific provisions contained in Section 147 of the Act, which provides for compounding of offence allegedly committed under Section 138 of the Act. 11. The Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner against the judgment passed by this Court in Criminal Revision No.394 of 2015, wherein conviction/ sentence awarded by the Court below came to be upheld. In the case at hand, Special Leave to Appeal (Crl.) filed by the applicant/petitioner was dismissed as withdrawn vide order dated 18.08.2017. Subsequent to passing of aforesaid order by Hon ble Apex Court, petitioner/applicant has approached this Court, praying therein for modification/recalling of its judgment dated 10.3.2017, passed in Criminal Revision No.394 of 2015 on the ground that parties have amicably settled the matter and entire amount stands paid to the respondent/complainant in terms of judgment passed by the learned trial Court. Learned counsel representing the petitioner/applicant, contended that once the Supreme Court permits withdrawal of a Special Leave Petition without recording reasons, it is as if no appeal was ever filed or entertained, since in the absence of grant of special leave, there is no appeal in existence. Learned counsel further contended that where a Special Leave Petition is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the High Court judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs sought permission to withdraw the SLP. It is also not as if the Supreme Court is not known to, while dismissing the SLP as withdrawn, grant such liberty. The order thus has to be read as it is i.e., of dismissal of SLP as withdrawn. 12. Rule 9 of Order XV titled Petitions Generally of the Supreme Court Rules, 2013 provides for withdrawal of the petition. Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from re-filing the same or even in the absence of such Rules, such re-filing may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition. 13. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition. 14. As far as the effects, if any, of dismissal in limine of a SLP on a subsequent review petition before the High Court is concerned, which arise for consideration are firstly whether, Abb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayammed (supra). 16. It would thus be seen that Kunhayammed (supra), though of a Bench of the same strength as Abbai Maligai Partnership Firm (supra), did not read Abbai Maligai Partnership Firm (supra) as laying down anything to the contrary than what was held in Kunhayammed (supra). The Supreme Court having expressly held so, it is not open today to the respondent UOI to contend or for us to hold that there is a conflict in the two. 17. We now proceed to analyze whether Sunil Kumar (supra) carves out any different factual scenario in which Abbai Maligai Partnership Firm and Kunhayammed (supra) operate. 18. Supreme Court in Sunil Kumar (supra) was concerned with a petitioner who was held to be a blackmarketer exploiting helplessness of the poor people of the society and capable of engaging lawyers and found to be abusing the process of the Court and wanting to use the Courts as a safe haven. The subject matter of Sunil Kumar (supra) was a transaction under Section 7 of the Essential Commodities Act, 1955. The petitioner therein was found to have approached the High Court for modifying the order of his conviction after the SLP against the order of conviction had been dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution. That certainly could not be so when appeal is dismissed though by a nonspeaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court. 27.A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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