CRL.A. 191/2005

Page 1 of 7

$~R-35.

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CRL.A. 191/2005

%

Judgment dated 12.11.2013

M/S. RATHI UDYOG LIMITED

..... Appellant

Through :

Mr.Shiv Khorana, Adv.

versus

M/S AAR ESS & CO. AND OTHERS

..... Respondents

Through :

Mr.J.P. Gupta, Adv. for respondents.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

1.

Learned counsel for the parties submit that it is not necessary to

summon the trial court record as certified copies of the order sheets

and pleadings have been placed on record.

2.

Present appeal is directed against the order dated 3.8.2004 passed

by learned Metropolitan Magistrate in Complaint Case No.922/1 of

2002, by which the complaint of the appellant herein under Section

138 of Negotiable Instruments Act was dismissed.

3.

While dismissing the complaint, the trial court has noticed in the

impugned order that the accused respondent herein was summoned

under Section 138 of Negotiable Instruments Act after a prima facie

case was established against him. On 28.4.2003 an offer was made

by the respondent that he would make the entire payment by the

next date. But as the payment was not made the Court framed

notice under Section 251 Cr.P.C. and the case was adjourned for

2013:DHC:5790

CRL.A. 191/2005

Page 2 of 7

evidence on 26.8.2003. The trial court then goes on to notice that on

the said date i.e. 26.8.2003 the parties compromised the matter and

the respondent moved an application for settlement containing

some terms and conditions including furnishing of a bank guarantee.

The

said

application

was

also

signed

by

the

authorised

representative of the appellant. The case was adjourned to 5.9.2003

on which date in lieu of bank guarantee the respondent handed over

a

cheque

in

the

sum

of

Rs.9,59,155/-

to

the

authorised

representative of the appellant, who gave a statement about

compromise having taken place and also accepted the cheque. The

matter was adjourned to 1.11.2003 on which date the relieving

Magistrate passed an order that the matter could not be

compromised as both the parties had some dispute about the letter

of authorisation and, thus, the case was again adjourned for

evidence to 21.2.2004. On 21.2.2004 the Court suo motu raised the

question with regard to maintainability of the complaint. The trial

court was of the view that since the parties had arrived at an

amicable settlement and compromised the matter, the complaint

was bound to be dismissed and in case the subsequent cheque

handed over to the complainant was dishonoured, being a separate

cause of action, a fresh complaint would lie.

4.

The trial court took the aid of a judgment rendered in the case of

Venketesh Dutt v. M.S. Shoe East Limited, reported at 109

(2004) DLT 480, relevant portion of which reads as under:

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CRL.A. 191/2005

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“Proceeding under Section 138 of the act are penal proceeding

and are independent of civil remedy of suit for recovery and

therefore cannot be allowed to be converted into a civil suit.

Since the offence under section 138 of the Negotiable

Instrument Act is of compoundable nature parties may decide

to compound the offence under Section 138 of the Act by way

of cheque towards the liability of the accused during the

pendency of the complaint, it amounts to compounding of the

offence resulting acquittal as he has with open eyes entered

into the agreement and accepted the cheques.”

5.

Learned counsel for the appellant submits that firstly the judgment

sought to be relied upon by the trial court in the case of Venktesh

(Supra) is not applicable to the facts of this case as no lawful

compromise was arrived at between the parties. Counsel further

submits that acceptance of the cheque was conditional in nature

which is evident from the statement made by the authorised

representative of the appellant compan