Delhi High Court
Brijesh Dubey vs State & Ors. on 16 March, 2018
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.03.2018
+ CRL.M.C. 3232/2008
BRIJESH DUBEY ..... Petitioner
versus
STATE & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Arvind Dua, Advocate with petitioner in person.
For the Respondent : Mr. Akshai Malik, APP for the State.
Mr. Deepak Gandhi with Mr. Dhrvu Gandhi and Mr.
Arhum Sayeed, Advocates for the respondent No.2.
SI Reena, PS. Paschim Vihar.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
16.03.2018
SANJEEV SACHDEVA, J. (ORAL)
Crl.M.A.4362/2017 (for recalling the order dated 31.10.2008)
1. This is an application on behalf of the respondent No.2 seeking
recall of order dated 31.10.2008, passed by this Court, whereby the
FIR No.238/2002 under Sections 452/506/34 IPC, Police Station
Paschim Vihar has been quashed based on a compromise.
2. The subject FIR was registered on a complaint by the
respondent No.2 on 31.05.2002. During the pendency of the trial, the
parties had approached the Trial Court for referring the matter to the
Lok Adalat on the premise that there was a possibility of a settlement.
3. Pending the proceedings before the Lok Adalat, parties entered
into a settlement and a document was executed by the petitioner on
21.04.2007, wherein, it is written that in the year 2002, there was a
fight between the petitioner and the respondent No.2 with regard to
some issue. It is also recorded in the said note by the petitioner that
now he has no dispute with the respondent No.2. He has further
confirmed that after the said date he will not fight with the respondent
No.2 and that he treats the respondent No.2 as his elder brother.
4. It is the case of the applicant/respondent No.2 that since the
petitioner had executed the said writing, the respondent No.2
consented to the quashing of the FIR, which was registered on his
complaint. The applicant/respondent No.2 contends that when the
settlement took place between the parties and the applicant appeared
before this court in this petition, he was not informed or made aware
that there was a complaint case filed by the petitioner under section
200 Cr P C, which were pending.
5. It is contended that the petitioner had filed a complaint against
the respondent No.2 under Section 200 of the Criminal Procedure
Code on 26.07.2005 alleging an assault by the respondent No.2 and
two of his employees. It is contended that till the time of the
settlement or passing of the order quashing of the subject FIR, the
respondent No.2 was not aware of the pendency of the said complaint.
It is contended that the respondent No.2 had settled with the petitioner
on the understanding that all disputes between the parties would be
amicably resolved and they were not be relegated to further litigation
in Court.
6. Learned counsel for the applicant/respondent No.2 contends
that it is only after the subject FIR was quashed that the respondent
No.2 was summoned in the complaint case filed by the petitioner.
7. It is submitted that the petitioner has played a fraud not only on
the respondent No.2 but also on the Court thereby giving an
impression that all disputes between the parties are being settled.
Whereas, the petitioner clandestinely continued to prosecute his
complaint against respondent No.2 and misled him into agreeing to
quashing of the subject FIR.
8. Learned counsel for respondent No.2 further submits that since
the petitioner could not prove the allegations in his complaint, the
subject complaint has been dismissed by order dated 15.11.2017.
9. Learned counsel for the respondent No.2, in these
circumstances, submits that respondent No.2, on account of
concealment and misrepresentation, was mislead into settling with the
petitioner and consenting to the quashing of the subject FIR. It is
prayed that the order be recalled and the subject FIR be revived and
the respondent No.2 be permitted to prosecute the same in accordance
with law.
10. Learned counsel for the petitioner disputes the contentions of
the respondent No.2 and submits that settlement was only with regard
to the subject FIR and there was no settlement between the petitioner
and the respondent No.2 with regard to other disputes. Learned
counsel for the petitioner submits that the Settlement Letter dated
21.04.2007 was executed by the petitioner at the demand, insistence
and request of the respondent No.2 and he had only settled the
disputes qua the subject FIR and had not settled the disputes qua the
complaint filed by him. It is further contended that the
applicant/respondent No.2 approached the petitioner and requested
him to enter into the said compromise to save his own skin from being
implicated in future by the Court for lodging a false complaint against
the petitioner as there was all likelihood of the present petitioner of
being acquitted of the said offence.
11. Learned counsel for the petitioner submits that the petitioner
has already filed an appeal, impugning an order dated 15.11.2017,
dismissing his complaint and the appeal is pending.
12. Learned counsel for the respondent No.2 submits that they have
not received any notice of the appeal.
13. During arguments, learned counsel for the petitioner now
submits that, in fact, the petitioner was also scared and petitioner
executed the writing dated 21.04.2007 at the specific
request/insistence of the applicant/respondent No.2 as the petitioner
was afraid that the petitioner would be trapped and lodged in false
cases as had been done in the past and would be further forced to
work for his unlawful smuggling activities.
14. Despite learned counsel for the petitioner being repeatedly
asked as to whether there is anything on record to show that the
applicant/respondent No. 2 was aware of the pendency of the
complaint between the period of the filing of the complaint, i.e.
26.07.2005 and passing of the order dated 31.10.2008, learned counsel
for the petitioner took over 35 minutes to make submissions and
referred to everything except to answering the said question. Learned
Counsel for the petitioner has not been able to point out to anything
on the record to show that the applicant/respondent No. 2 was aware
of pendency of the complaint at the time when he appeared before this
Court and agreed to quashing of the subject FIR.
15. It is not in dispute that the petitioner executed the document
dated 21.04.2007. The explanation being given by the petitioner to
the said document is that the respondent No.2, who was the
complainant in the subject FIR, was afraid that if the FIR was taken to
its logical conclusion, the petitioner would be exonerated and the
respondent No.2 would be prosecuted and the further contention that
the petitioner also wanted to save himself as there is a likelihood of
the petitioner being trapped in false cases and there was an ulterior
motive of the respondent to coerce and influence the petitioner to
work for the respondent No.2 in smuggling and unlawful business
activities.
16. Nothing has been brought on record to show that the petitioner
has been falsely implicated in any other FIR or proceedings at the
behest of the respondent No.2. The argument of the learned counsel
for the petitioner that the respondent No.2, who is the complainant in
the subject FIR, to save himself, had entered into the compromise,
does not seem to reason at all. It does not appear to be logical that the
respondent, who is the complainant in the FIR where criminal
prosecution of the petitioner is pending, would ask the petitioner to
give a letter, which is stated to be an apology letter as he was afraid of
being prosecuted in future. If such a situation was there then an
apology letter would have been written by the respondent No.2
apologising to the petitioner for implicating him in a false complaint.
17. For the purpose of completeness, we may also refer to writing
of 21.04.2007, which reads as under.
"मैं ब्रजेश कुमार दु बे s /० स्वर्गीय श्रो भर्गवंत प्रसाद दु बे E -27,
न्यू मुल्तान नर्गर ददल्ली 56 मे रहता हूँ . मेरा और अदिनी
अग्रवाल s /० श्री हरी ओम अग्गरवाल R/o A1/330 का आपस
में सन 2002 में दकसी बात को लेकर झर्गड़ा हो र्गया था l मेरा
अब इनसे आपस मे कोई झर्गड़ा नहीं है और आइं दा भी कोई
झर्गड़ा नहीं कर
ूँ र्गा l मैं इनकी बड़े भाई की तरह इज़्ज़त
कर
ूँ र्गा और मैं कल कोर्ट लोक अदालत मे अपना केस वापस
लेंर्गे."
18. Perusal of the writing executed by the petitioner on 21.04.2007
shows that the petitioner has agreed that, as on the said date, the
petitioner has no surviving dispute with the respondent No.2 and
henceforth he shall not fight with him. It is further recorded that the
petitioner gives respect to respondent No.2 as his elder brother.
Nowhere in the said writing is it stated that the said settlement is
restricted only to the subject FIR and no other disputes on the contrary
it confirms that all disputes have been resolved.
19. Even in the order dated 31.10.2008, this Court has noticed that
the parties have compromised their disputes and the FIR had been
quashed in the interest of the parties and keeping peace and harmony
between them and to avoid further such incidents inter se the parties.
20. The Petitioner has reneged on his own writing dated 21.04.2007
consequent to which the subject FIR was consented to be quashed by
Respondent No. 2. Since the petitioner himself has breached the said
understanding, in my view, the entire compromise between the
petitioner and the respondent No.2 is vitiated.
21. It is a settled proposition of law that the fraud vitiates
everything. The petitioner did not inform respondent No.2 or this
Court about the pendency of the complaint filed by the petitioner
against the respondent No.2 and the intention of the petitioner to
continue to prosecute the same even after the subject FIR is quashed
based on the settlement. Even today, the petitioner was asked as to
whether he wishes to put a quietus to the entire disputes, to which the
answer was in the negative, which indicates that the petitioner is
willing to prosecute his complaint filed against the respondent No.2.
It would be a very unfair and an inequitable to permit one of the
parties to continue prosecution based on a settlement and to force the
other party to be bound by the settlement and withdraw his complaint.
22. In view of the above, the application is allowed. The order
dated 31.10.2008, quashing the subject FIR, is recalled. The subject
FIR is restored to the file of the Trial Court. The Trial Court shall
proceed with the trial in accordance with law.
23. List before the Trial Court for appropriate orders and issuance
of consequential directions on 06.04.2018.
24. Order dasti under the signatures of the Court Master.
SANJEEV SACHDEVA, J
MARCH 16, 2018
st
