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IN THE HIGH COURT OF DELHI
R.K. Gauba, J.
Vikas Aggarwal - Appellant
Versus
Tripurari Mani Tripathi - Respondent
Crl.M.C. 625 of 2019
Decided On : 09-08-2019
ORDER(Oral)
1. The petitioner had instituted a criminal complaint case (CC No.18672/2016) against the respondent (accused) alleging commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881 having been committed. It appears on the basis of pre-summoning inquiry, the respondent stood summoned as accused.
2. During the course of proceedings that followed, the parties took the dispute to the process of mediation where they entered into a settlement on 13.03.2012, in terms of which the respondent agreed to pay the cheque amount of Rs.45 lacs to the petitioner (complainant) by 31.07.2012. The case thereafter came up before the Metropolitan Magistrate on 21.03.2012 when the report of the said settlement was placed before the court, the case having been adjourned for "part payment". It appears that the matter was adjourned on certain dates on which some payment was made by the accused, however, the settlement terms not having been fully complied with.
3. The respondent (accused) thereafter absented himself from the proceedings, this resulting in duress process being issued against him followed by proclamation under section 82 of the Code of Criminal Procedure, 1973 (Cr.P.C.). Upon re-appearance of the accused, on his request, by order dated 15.04.2014, the proclamation was recalled and the case taken to the stage of framing of notice (under section 251 Cr.P.C.).
4. It is against the above backdrop that an application was moved by the petitioner (complainant) for recovery of the balance amount under the settlement as amount of fine or land revenue. The request was declined by the Metropolitan Magistrate by order dated 07.08.2018.
5. On the subsequent date, i.e., 05.10.2018, the Metropolitan Magistrate framed notice under section 251 Cr.P.C. and having recorded the plea (of not guilty) tendered by the accused, listed the case for consideration of application, if any, moved by him during the interregnum under section 145(2) of the Negotiable Instruments Act, 1881.
6. The above mentioned orders dated 07.08.2018 and 05.10.2018 of the Metropolitan Magistrate are assailed by the petition at hand under section 482 Cr.P.C., the prime submission being that after the settlement through mediation, the procedure adopted by the Metropolitan Magistrate is inappropriate, not in sync with the ruling of a division bench of this court reported as Dayawati vs. Yogesh Kumar Gosain, 2017 SCC Online Del 11032, the balance amount under the settlement liable to be recovered as fine.
7. Against a more or less similar backdrop brought before this court in two other petitions led by Crl.M.C.2827/2019, Rajkumar Kuchhal vs. Loyal Logistics Pvt. Ltd. & Anr., decided on 05.08.2019, this court has noted the law, and dealt with the issue as under:
"6. The following observations of the division bench in Dayawati vs. Yogesh Kumar Gosain, (2017) 243 DLT 117 (DB) are germane for decision on the issue raised here:
"115. There is no legal prohibition upon a criminal court seized of such complaint, to whom a mediated settlement is reported, from adopting the above procedure. Application of the above enunciation of law to a mediation arising out of a criminal case manifests that a settlement agreement would require to be in writing and signed by the parties or their counsels. The same has to be placed before the court which has to be satisfied that the agreement was lawful and consent of the parties was voluntary and not obtained because of any force, pressure or undue influence. Therefore, the court would record the statement of the parties or their authorized agents on oath affirming the settlement, its voluntariness and their undertaking to abide by it in the manner followed by the civil court when considering a settlement placed before it under Order XXIII Rule 3 of the CPC. The court would thereafter pass an appropriate order accepting the agreement, incorporating the terms of the settlement regarding payment under Section
