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IN THE HIGH COURT OF DELHI
Honble Judge: S. Muralidhar, J.
Thakur Arora – Appellants
Vs.
The State NCT of Delhi and Anr. – Respondent
Crl. Rev. P. No. 103/2008
Decided On: 19.02.2009
Section 138 NI Act - Dishonour of Cheque - 138 NI Act
Fact of the Case:
The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act 1881 (NI Act) against the respondent for dishonour of a cheque. The parties entered into a memorandum of understanding (MOU) to settle the case, but the cheques issued pursuant to the MOU were dishonoured. The respondent sought discharge based on a judgment in Venkatesh Dutt v. MS Shoes East Limited, which was contested by the petitioner.
Finding of the Court:
The court found that the judgment in Venkatesh Dutt may no longer be considered good law in light of the subsequent judgment of the Supreme Court in Lalit Kumar Sharma and allowed the petition, setting aside the impugned order and reviving the original complaint.
Issues: The issues revolved around the validity of the MOU and the legal implications of dishonoured cheques issued pursuant to the MOU, as well as the applicability of previous judgments in similar cases.
Ratio Decidendi: The court held that if the complainant cannot file a fresh complaint for the dishonour of cheques issued pursuant to a compromise, then the original complaint must be permitted to be revived.
Final Decision: The impugned order was set aside, and the original complaint was revived before the learned MM.
S. Muralidhar, J.
1. The challenge in this petition under Section 482 of the Code of Criminal Procedure 1973 (CrPC.) is to an order dated 11th December 2007 passed by the learned Metropolitan Magistrate (MM.) Delhi discharging the accused (Respondent No. 2 herein) in Criminal Complaint Case No. 2421/1/05 under Section 138 of the Negotiable Instruments Act 1881 (NI Act.).
2. The aforementioned complaint was filed in relation to the dishonour of a cheque No. 782563 dated 10th September 2005 in the sum of Rs. 60,000/- drawn by the Respondent No. 2 Ashok Verma in favour of the Petitioner Thakur Arora as part payment of loan borrowed by the Respondent No. 2 from the Petitioner. The said cheque was dishonoured with the remarks "funds insufficient".
3. During the pendency of the complaint the parties entered into the memorandum of understanding (MOU.) on 8th November 2006. The said MOU reads as under:
Memorandum of Understanding
This memorandum of understanding is executed at New Delhi on this 8th day of November 2006 between Mr. Thakur Arora s/o Sh. Surat Prakash Arora r/o P-22A, Sri Niwas Puri, Private Colony, New Delhi (hereinafter referred as First Party) And Mr. Ashok Verma s/o Late Sh. Sohan Lal r/o 51, Vinobapuri, Lajpat Nagar-II, New Delhi - 110 024 (hereinafter referred as Second Party). Whereas the First Party has filed a criminal complaint Under Section 138 N.I. Act against the Second Party and the same is pending before the Court of Sh. Jagdish Kumar, M.M., Patiala House Courts, New Delhi. And whereas both the parties have agreed to amicably settle the abovesaid case on the following terms and conditions:
1. That the Second Party will pay to the First Party a sum of Rs. 1,25,000/- (Rupees one lakh twenty five thousand) towards all dues as full and final settlement.
2. That Rs. 5,000/- will be paid by the Second Party to the First Party on or before 15th December 2006 and the balance amount of Rs. 1,20,000/- will be paid vide twelve post dated cheques of Rs. 10,000/- (Rupees ten thousand only) to the First Party and the same shall be handed over on or before 1st December 2006.
3. That the Second Party will clear aforesaid payment i.e. of Rs. 1,25,000/- before 31st December 2007.
4. That after receiving the entire payment of Rs. 1,25,000/- the First Party will withdraw all his complaint/ proceedings pending in the Court of law.
5. That the Second Party has also assured that no cheque shall be dishonoured on any account and in case any cheque is dishonoured, this MOU shall come to an end and the above noted matter shall continue as there has not been any compromise/understanding.
6. That this MOU has arrived between the parties of their free will, coercion and without any influence/force from any side.
In witness whereof this Agreement is signed by both the parties in the presence of the following witnesses on this 8th day of November 2006.
4. Pursuant to the aforementioned MOU post dated cheques dated 16th December 2006 were given to the Petitioner. The complaint was listed on 9th November 2006 before the learned MM. Although the learned MM was informed of the MOU, the complaint was not disposed of on that basis.
5. Thereafter on 18th October 2007 the Respondent No. 2 accused filed an application before the learned MM under Section 147 NI Act read with Section 320
.(8) and 255 CrPC for recording the acquittal of the accused. Reliance was placed on the judgment of this Court in Venkatesh Dutt v. MS Shoes East Limited 2004 .(1) JCC (NI) 44. The said application was taken up by the learned MM on 11th December 2007. Learned Counsel for the complainant objected to the said application by pointing to the learned MM that the cheques dated 16th December 2006 given to the complainant by the accused pursuant to the MOU had also been dishonoured and therefore, the MOU had failed. It was pointed out that the judgment in Venkatesh Dutt did not apply since the Clause 5 of the MOU clearly stipulated that if any of the post dated c
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