$~ 25 & 26 (common order)

IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on:- 5^th August, 2019

+

CRL.M.C. 2827/2019 and Crl.M.A.11442/2019

RAJKUMAR KUCHHAL

..... Petitioner

Through:

Mr. Ankur Jain, Adv. with

Mr. Aayush Gupta, & Mr.

Rahul Bindal, Advocates

versus

LOYAL LOGISTICS PVT. LTD. & ANR ..... Respondents

Through:

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CRL.M.C. 2867/2019 and Crl.M.A.11558/2019

RAJKUMAR KUCHHAL

..... Petitioner

Through:

Mr. Ankur Jain, Adv. with

Mr. Aayush Gupta, & Mr.

Rahul Bindal, Advocates

versus

ASIAN CARGO MOVERS & ANR

..... Respondents

Through

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

ORDER (ORAL)

1.

The petitioner had instituted two criminal complaint cases (CC

Nos.20042/2016 and 18609/2016) against party respondents in these

petitions alleging offences under section 138 of the Negotiable

Instruments Act, 1881 having been committed by failure to make the

payment of the requisite amounts pursuant to notices on demands that

had been issued by the said parties in the wake of return of cheques by

the bank upon presentation. It appears that on the basis of pre-

summoning inquiry, the respondents herein were summoned as

accused in the said two criminal cases. It further appears that midway

the proceedings in the criminal complaints, parties entered into

settlement agreement in Delhi Mediation Cell on 26.11.2016, the

terms whereof would read thus:-

meaningless.”

2.

The settlement agreement dated 26.11.2016 came before the

concerned Metropolitan Magistrate on 16.12.2016, when the

respondents were present. The presiding officer of the court being on

leave, the cases were adjourned for purposes of consideration to

03.01.2017. On the said date, i.e., 03.01.2017, the respondents were

absent. The petitioner (being the complainant), however, submitted

before the Metropolitan Magistrate that he had received sixteen post-

dated cheques in terms of the mediation settlement. Taking note of

this submission, the Metropolitan Magistrate avoided passing any

adverse orders against the accused for failure on their part to appear

and adjourned the matters to 28.07.2017.

3.

On 28.07.2017, it is shown from the proceedings recorded by

the Metropolitan Magistrate, the counsel for the petitioner informed

that cheques which had been presented by that date had failed, no

payment having been received through such instruments, though some

payment having been remitted by RTGS. The Metropolitan Magistrate

noted the information and the absence of the respondents herein and

issued non-bailable warrants (NBWs) against them. The subsequent

proceedings held (on several dates) right till the impugned order dated

21.01.2019, would show that the duress processes in the nature of

NBWs and proclamations under section 82 of the Code of Criminal

Procedure, 1973 were issued, but never executed. The respondents

appeared on some dates and, on their oral request and explanation,

such process were cancelled, their undertaking to pay in terms of the

settlement also being noted and time for compliance with such

undertaking also extended, it being admitted case of the petitioner that

some further payments were received during that period.

4.

Against the above backdrop, the petitioner, as the complainant

approached the Metropolitan Magistrate, by an application seeking

enforcement of the settlement agreement and recovery of the balance

amount thereunder as fine, placing reliance on decision of a division

bench of this court reported as Dayawati vs. Yogesh Kumar Gosain,

(2017) 243 DLT 117 (DB). This request was, however, declined by the

Metropolitan Magistrate, by order dated 21.01.2019, she opting

instead to take the case to trial adjourning it for framing of notice

(under section 251 Cr.P.C.). The petitioner challenged the above

mentioned order of the Metropolitan Magistrate in the court of

sessions by Criminal Revision Petition Nos. CR. No.29/2019 and CR.

No.30/2019 whi