Delhi High Court
Francis Miranda vs The State (Govt. Of Nct Of Delhi) & Anr. on 20 March, 2012
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3097/2011
Date of Decision: 20.03.2012
FRANCIS MIRANDA ...... PETITIONER
Through: Mr.Rajeev Sirohi, Advocate.
Versus
THE STATE (GOVT. OF NCT OF DELHI) & ANR.
......RESPONDENT
Through: Ms. Fizani Husain, APP.
Ms.Anu Narula, Advocate for
R2.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. The petitioner seeks quashing of the FIR bearing FIR No. 736 of 2004 under Section 420/403/506 IPC, P.S. Kalkaji and proceeding arising there from presently pending in the court of Ld. MM.
2. The facts necessitating the disposal of the present petition are that, the complainant/respondent no.2, a lady aged 35 years, was introduced to the petitioner through her friend, accused Michael Lebon. Soon thereafter, they started talking to each other on the phone and met at social gatherings. In December 2002, the petitioner along with accused Michael Lebon, went to the house of the complainant/respondent and proposed to her Crl.M.C. 3097/2011 Page 1 of 10 for marriage, which she accepted. Thereafter, it is alleged that she was induced to have sexual relations with him, and resultantly, she became pregnant in March, 2003. The complainant/ respondent No. 2 insisted that marriage be solemnized between them, however, at this stage the petitioner informed the complainant/respondent no.2 that he is already married and insisted on abortion of the child. In April 2003, accused Michael Lebon and the petitioner went to the house of the complainant/ respondent no. 2 and informed her that the divorce proceeding between the petitioner and his wife are pending and the petitioner's wife was demanding Rs. 2.5 lacs as alimony. It is alleged that both accused Michael Lebon and the petitioner compelled the complainant/respondent no. 2 to arrange the said amount, if she wanted to marry the petitioner, to which she duly agreed. After receiving the entire amount of Rs. 2.5 lacs, it is alleged that the petitioner started misbehaving with the complainant/respondent no. 2 and physically beat her up, due to which she had to be taken to the hospital and resultantly, her child was aborted. Thereafter, the complainant/respondent no. 2 was informed that after receiving the alimony amount, the petitioner and his wife had been divorced on 30.06.2003. Again on 10.07.2003, accused Michael Lebon met the complainant/ respondent no. 2 and asked her to pay Rs. 20,000/- as lawyers fee incurred in the divorce proceeding, to which she agreed and the said amount was paid vide cheque no. 361296 dated 10.07.2003. It was later Crl.M.C. 3097/2011 Page 2 of 10 learnt by the petitioner that the amount of Rs. 2.5 lacs paid by the complainant/respondent no. 2 was not utilized in the divorce proceeding and misappropriated by accused Michael Lebon and the petitioner. It is alleged that, from the inception, it was the intention of the petitioner and accused Micheal Lebon to cheat the complainant/respondent no.2. It is further alleged that, the complainant/respondent no. 2 was threatened to be murdered in case she takes any action against accused Michael Lebon or the petitioner.
3. A complaint under section 200 CrPC was filed in the court of the Ld. MM along with application under Section 156(3) CrPC and the Ld. MM was pleased to direct registration of an FIR against the petitioner and accused Michael Lebon. Consequently, FIR No. 736 of 2004 under section 420/403/506 IPC was registered on 15.05.2004 against accused Micheal Lebon and the petitioner. The charge sheet in the case was filed on 18.08.2004. The petitioner was arrested and was granted interim bail by the Sessions Court vide order dated 26.10.2004 on the premise that that the matter has been settled between the parties and the petitioner has agreed to pay the complainant a sum of Rs. 2.5 lacs. Thereafter, on payment of Rs. 2.5 lacs to the complainant/ respondent no. 2, the bail of the petitioner was made absolute by the Ld. ASJ vide order dated 04.01.2005. Thereafter, accused Michael Lebon and the petitioner appeared before the Ld. MM in the course of which the complainant demanded a further sum of Rs. 20,000/- for compounding of Crl.M.C. 3097/2011 Page 3 of 10 the case. The amount was negotiated at Rs. 10,000/- over and above the previous Rs. 2.5 lacs which was already paid to the complainant, which was duly recorded by the Ld. MM vide order dated 29.01.2005. The matter was put up for disposal before the Lok Adalat. Thereafter, in the proceeding before the Lok Adalat, the complainant retracted from the settlement amount of Rs. 10,000/- and demanded Rs. 20,000/- and therefore, the case could not be compounded by the Lok Adalat. Accused Michael Lebon approached this Court in Crl M.C. No. 2688 of 2010 under section 482 CrPC praying quashing of the FIR and this Court was pleased to quash the FIR qua accused Michael Lebon vide order dated 15.03.2011. The Ld. MM vide order dated 15.02.2011 directed the complainant to return the amount of Rs. 2.5 lacs which was previously paid, in view of the dispute in the settlement amount between the parties. A revision was preferred by the complainant being Crl Rev No. 105 of 2011 against the Ld. MM's order, directing the complainant to return the amount of 2.5 lacs, which was dismissed as withdrawn vide order dated 15.03.2011. The complainant/respondent no. 2, thereafter placed a cheque of Rs. 2.5 lacs on the judicial file. The petitioner has preferred the present petition under section 482 CrPC praying quashing of the FIR qua the petitioner.
4. The Ld. counsel for the petitioner submitted that the dispute was amicably settled between the parties at Rs. 2.5 lacs. The consent of the complainant/ respondent no. 2 has been duly Crl.M.C. 3097/2011 Page 4 of 10 recorded by the Ld. ASJ at the time of granting bail to the petitioner. The said amount of Rs. 2.5 lacs was duly paid to the complainant as mutually agreed. Subsequently, fresh demand was raised by the complainant/ respondent no. 2, however the demand was negotiated and the petitioner also agreed to pay a further sum of Rs. 10,000/- in view of the settlement with the consent of the complainant which was recorded by the Ld. MM vide order dated 29.01.2005. Despite the settlement as agreed to, the complainant retracted from her stand and the compounding could not be executed by the Lok Adalat. The factum of consent to the compounding has been clearly recorded by the Ld. MM as well as the Judge, Lok Adalat in the order. It was submitted that the retraction to settlement and fresh demand of Rs. 20,000/- by the complainant seems to be due to some ulterior motive.
5. It was further submitted that, the cheque of Rs. 20,000/- was admittedly given to accused Michael Libon as lawyer's fee as is apparent in the complaint, however in contradiction to that, in the legal notice by the counsel of the complainant to accused Michael Lebon, it is stated that the cheque was given as a short term loan to the accused Michael Lebon. Also before registration of the FIR, a complaint was lodged by the complainant with the ACP, CAW Cell, Nanakpura, in which no such allegations were made against accused Michael Lebon. Also the aforesaid cheque has not been encashed by accused Michael Lebon. Therefore, the complainant has tried to Crl.M.C. 3097/2011 Page 5 of 10 improve her case subsequently. Such contradictions and conduct of the complainant/ respondent no. 2 raise a doubt on the veracity of the complaint.
6. Per contra, the Ld. APP along with counsel for respondent no. 2 opposed this petition. The Ld. counsel for the complainant/ respondent no. 2 submitted that the amount of Rs. 2.5 lacs offered as settlement cannot be considered as settlement amount as that was the actual amount admittedly paid by the complainant to the petitioner. Repayment of the said amount by the petitioner cannot be equated with compensation amount in lieu of compounding the offence. It was submitted that the complainant agreed to a compromise earlier because, at that particular time she was psychologically cornered and was compelled to arrive at a settlement and she was not in a mental state to comprehend the consent orders as passed by the Ld. Trial Court. Further, the aforesaid amount of Rs. 2.5 lacs has already been placed on judicial record as per the direction of the Ld. MM. Also the submission of the counsel for the petitioner that the cheque of Rs. 20,000/- towards lawyer's fee is false as the cheque was encashed in the name of Benita, the niece of accused Michael Lebon.
7. It is further submitted by the counsel of complainant that she (complainant) has not been mentally able to reconcile herself with her modesty and dignity and feels cheated and defrauded by the petitioner. The learned counsel also made various emotional submissions.
Crl.M.C. 3097/2011 Page 6 of 108. I have heard learned counsel for the petitioner as well as the Learned APP and counsel for the complainant/ respondent no.2. In the present petition a short question arises for determination being, whether the complainant can be allowed to retract from a settlement previously consented to in a court of law on the basis of the facts and circumstances of the case?
9. After the registration of the FIR on 15.05.2004, the petitioner was arrested. He was released on interim bail by the Ld. ASJ vide order dated 26.10.2004 on the premise of a settlement arrived at between the parties. The interim bail granted to the petitioner was made absolute by the Ld. ASJ vide order dated 04.01.2005, after confirming the payment of Rs. 2.5 lacs to the complainant. In the said order, the Ld. ASJ categorically states the factum of settlement between the parties and mode of payment. Subsequently, fresh demand of Rs. 20,000/- was raised on 10.01.2005. The amount was negotiated at Rs. 10,000/- which is evident from order of Ld. MM dated 29.01.2005. However the demand of Rs. 20,000/- was again raised in the Lok Adalat on 06.03.2005 as a result of which the case could not be compounded. A perusal of all the aforesaid orders evidences that the settlement was arrived at by the complainant/ respondent no. 2 voluntarily and without any coercion or duress. The contention of learned counsel for the complainant/ respondent no. 2 that she was under stress and psychologically cornered, as the reason for the previous agreement to settlement is untenable as in all the orders Crl.M.C. 3097/2011 Page 7 of 10 between 26.10.2004 to 06.03.2005 of the Ld. ASJ, Ld. MM and Judge Lok Adalat, there is not the slightest of observation as to the complainant not being in a fit state of mind or the factum of a forced settlement. The complainant did not raise any objection to compounding on any reason besides inadequate compensation amount, therefore, this ground of mental instability at the time of passing of the settlement order by the Ld. MM cannot be raised afresh in this court. Also the fact of encashment of Rs. 2.5 lacs by the complainant reflects her acceptance to a valid consent order. Further, the fact that the bail was granted to the petitioner on the sole premise that the matter has been settled between the parties, projects the state of mind of the complainant/ respondent no. 2 and also the validity of the order of settlement.
10.From perusal of the orders of the Ld. ASJ, LD. MM and Judge, Lok Adalat, it is observed that the settlement as agreed to by the parties was not partial settlement. Nowhere has it been observed that this amount is only for the return of the money as owed by petitioner. In the absence of any such observation, it has to be assumed that the amount of Rs. 2.5 lacs and further amount of Rs. 10,000/- was for a full and final settlement between the parties. Further, no averment as to the change in facts or circumstances was urged by the Ld. counsel for the complainant or any special reasons submitted to retract from the settlement. Also there is no averment by the complainant, that subsequent to the complaint there was any coercion or Crl.M.C. 3097/2011 Page 8 of 10 force exercised by the petitioner to compel the complainant/ respondent no. 2 to enter into a settlement and compound the offence. Therefore, by no stretch of imagination can it be implied that the settlement agreement recorded by the Ld. ASJ and the Ld. MM was for partial settlement or recovery of money owed by the petitioner to the complainant and the contention of the counsel of the complainant that the payment of Rs. 2.5 lacs was merely repayment of the money owed by the petitioner, are all untenable.
11. It is correctly pointed out by the learned counsel for the petitioner that there are contradictions in the case set up by the complainant. The complainant has tried to improve upon her case as there is inconsistency in the facts as set out in the legal notice, complaint to the CAW cell and the complaint before the magistrate. In view of the inconsistencies in the factual matrix and the case set up by the complainant, this court vide order dated 15.03.2011 was pleased to quash the FIR qua accused Michael Lebon. Such inconsistencies give a severe blow to the veracity of the complaint.
12.The Ld. MM has also recorded the inconsistent stand of the complainant over the settlement and made negative observations.
13. In view of the above observations, I am of the view that the complainant/ respondent no. 2 had entered into a settlement with the petitioner on her own free will. Her subsequent Crl.M.C. 3097/2011 Page 9 of 10 retraction to the settlement without any reasonable reason cannot be allowed.
14.The power of this court under section 482 CrPC have wide amplitude and should be used cautiously to prevent any miscarriage of justice.
15.The petitioner shall be allowed to compound the matter with the complainant/ respondent no. 2 for a total sum of Rs. 2.6 lacs as previously agreed. The amount of Rs. 2.5 lacs as placed by the complainant/ respondent no. 2 on the judicial record shall be returned to her with accrued interest, if any, and a further amount of Rs. 10,000/- be paid to the complainant/ respondent no. 2 by the petitioner within a week. In the event of complainant showing reluctance to accept Rs. 10000/- from petitioner, the later shall deposit the same with the Trial Court within a week thereafter. The FIR and all subsequent proceeding qua the petitioner shall stand quashed after the compliance of this order.
16.The petition is allowed and the matter is remanded back to the trial court with the above directions. The parties to appear before the Trial Court on 22nd March, 2012.
M.L. MEHTA, J.
MARCH 20, 2012 akb Crl.M.C. 3097/2011 Page 10 of 10