The pursuit of a complaint under Section 138 of the NI Act, despite receiving a higher amount and entering into a settlement agreement, can constitute an abuse of the court's process.

Mukta Gupta, J.

1. By the present petition the petitioners pray for quashing of complaint case No. NI-1080/14 titled “Sanjay Bansal vs. Gangotri Enterprises Ltd. & Ors.” and the order dated 16th January, 2015 issuing summons and the proceedings emanating therefrom.

2. In the complaint the respondent alleged that as per the Memorandum of Understanding dated 7th December, 2007 the respondent No.2 was to supply bitumen/LDO, Bitumen emulsion on various dates as per the demands by the petitioners at different sites. In lieu of the material supplied the petitioners handed over two post-dated cheques bearing Nos. 038531 and 038532 for a sum of Rs.25 lakhs each as guarantee against the supplies. It was agreed that the petitioner No.1 would make regular payments and in case of default the cheques could be presented for encashment. Towards the discharge of an outstanding liability of Rs.4.17 crores the petitioner gave directions to the respondents to present the two cheques dated 25th April, 2012 on the assurance that the same would be encashed on presentation. The said cheques were returned unpaid with the remarks “account closed” vide return memo dated 26th April, 2012. The respondent served legal notice dated 17th May, 2012 and since despite the legal notice no amount was paid complaint was filed. The said complaint was filed by the petitioners on 7th July, 2012.

3. On coming to know about the complaint the petitioners approached the respondent and a Memorandum of Agreement dated 7th October, 2013 was entered into between the parties wherein the respondent acknowledged the receipt of a new cheque equivalent to the earlier two security cheques for a sum of Rs.50 lakhs. As per the Memorandum of Agreement the application for withdrawal of the complaint case was to be presented before the learned Metropolitan Magistrate, Tis Hazari on the next date of hearing, that is, 17th January, 2014 and a copy thereof was supplied to the petitioners. The said withdrawal application was duly signed by the respondent No.2. Since the learned Presiding Officer was on leave on 17th January, 2014, the matter was adjourned to 6th May, 2014 however, no application for withdrawal of the complaint was filed. On 1st February, 2014 the respondent presented the new cheque No.344158 for a sum of Rs.50 lakhs which was duly honored. Even on 6th May, 2014 neither the application for withdrawal of the complaint was filed nor was the Court apprised of the settlement by the respondent. On 1st October, 2014 the learned Metropolitan Magistrate returned the complaint in view of the decision of the Supreme Court reported as (2014) 9 SCC 129 Dashrath Roop Singh Rathore vs. State of Maharashtra & Anr. Despite the fact that the respondent was to withdraw the complaint pursuant to the Memorandum of Agreement dated 7th October, 2013 the respondent re-presented the returned complaint before the learned Metropolitan Magistrate, Shahdara which was numbered as NI/1080/14. On 16th January, 2015, the learned Metropolitan Magistrate took cognizance of the offence and issued summons. Complaint was transferred to different Courts. Finally on 19th February, 2016, bailable warrants were issued against the respondent Nos. 2 to 5 resulting in the filing of the present petition.

4. Learned counsel for the petitioners has drawn attention of this Court to the Memorandum of Agreement dated 7th October, 2013, cheque No. 344158 drawn on Axis Bank Ltd. for a sum of Rs.50 lakhs and the Bank statement of the petitioners showing transfer of the amount of Rs.50 lakhs to that of the respondent.

5. On appearance before the learned Trial Court for cancellation of the non-bailable warrants issued, learned counsel for the petitioners drew the attention of the Court towards payment of Rs.50 lakhs and the Settlement Agreement noting that the complaint would be withdrawn. The learned Trial Court pose