Ghulam Mohammad Wani vs Ayaz Ahmad Wani
2021 Latest Caselaw 384 j&K/2

Serial No. 250
SUPPL LIST
                     IN THE HIGH COURT OF JAMMU AND KASHMIR
                                  AT SRINAGAR
                                                             Reserved on:         25.03.2021
                                                             Pronounced on:       02.04.2021

                                                                     CRMC NO. 255/2018
                                                                     C/w Crl R No. 9/2021

           Ghulam Mohammad Wani
                                                                              Petitioner(s)

                                            Through:-      Mr. N. H. Shah, Sr. Adv.
                                                           with Mr. Farheem Shah, Adv.
                                                     Vs.
           Ayaz Ahmad Wani
                                                                              Respondent(s)

                                            Through:-      Mr. Mir Suhail, Adv.
           CORAM:-
                               Hon'ble Mr. Justice Rajnesh Oswal, Judge.

                                                (JUDGMENT)

     01. The present revision petition was registered pursuant to the directions of

           the court issued on 17th March 2021 when the order dated 19th June 2017

           was brought to the notice of the Court. Perusal of the order reveals that

           both the complainant as well as the accused had produced one

           compromise before the Court with regard to the settlement of the

           complaint filed under Section 138 of the Negotiable Instrument Act.

           Further the contents of the compromise were read over to both the

           parties by the learned Magistrate and both the parties admitted the said

           compromise to be true and correct and in support thereof their respective

           statements were also recorded by the Court. The accused had also

           annexed an undertaking along with the application in which it was stated

           that in case the accused could not pay the settled amount as per the

AASIF GUL
2021.04.02 02:26
I attest to the accuracy and
integrity of this document
                                                    2
                                                        CRMC NO. 255/2018



           compromise then in that eventuality the accused would pay double of

           that amount. The learned Magistrate consigned the complaint to the

           records

     02. Heard Mr. N. H. Shah, learned senior counsel who has argued that once

           the matter was settled the court has not other option but to consign the

           complaint to the records.

     03. Per contra, Mr. Mir Suhail submits that the court was required to dispose

           of the complaint in terms of the said settlement but the Court has

           consigned the complaint to the records without any jurisdiction.

     04. Heard and perused.

     05. This is an admitted fact that the partiers have entered into compromise

           with regard to the payment of the settled amount within the prescribed

           period. However, instead of disposing of the complaint in terms of the

           compromise, learned Magistrate has consigned the complaint to the

           records. Needless to say that learned Magistrate has only three options

           available whenever any complaint including the complaint under Section

           138 of the Negotiable Instrument Act is filed:-

                     a) The Magistrate may convict the accused.

                     b) The Magistrate may acquit the accused.

                     c) In the event, the offences are compoundable then the court may

                          compound the offences.

     06.So far as the instant complaint is concerned, it is during the pendency of

           the complaint that the parties have entered into compromise and in that

           eventuality the learned Magistrate was under an obligation to dispose of

AASIF GUL
2021.04.02 02:26
I attest to the accuracy and
integrity of this document
                                               3
                                                       CRMC NO. 255/2018



           the complaint in terms of the settlement and the learned Magistrate

           should have ordered the payment as stipulated in the agreement within

           the period prescribed in the agreement.

     07.Having not done so and rather consigning the complaint to the records is

           illegal and arbitrary act on the part of the learned Magistrate. In view of

           this, the order dated 19th June 2017 is set as aide and the matter is

           remanded back to the learned Magistrate for fresh disposal under law.

     08.The petition is disposed of as above.

                     .

(Rajnesh Oswal) Judge

SRINAGAR 02.04.2021 "Aasif"

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

AASIF GUL 2021.04.02 02:26 I attest to the accuracy and integrity of this document