Sunil Gupta vs Kamal Kant
2009 Latest Caselaw 3503 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. REV. P. No. 195/2008

                                           Date of Decision : 02.9.2009

SUNIL GUPTA                                            ......Petitioner
                                     Through:    Mr.R.P.Luthra, Adv.

                                     Versus

KAMAL KANT                                              ...... Respondent
                                     Through:    Mr. Pawan Bahl, APP for
                                                 the State.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers can be
       allowed to see the judgment?                         NO
2.     To be referred to the Reporter or not ?              NO
3.     Whether the judgment should be reported
       in the Digest ?                                      NO

V.K. SHALI, J. (Oral)

1. This is a revision petition filed by the petitioner against the

order dated 06.2.2008 passed by learned Additional

Sessions Judge, Karkardooma Court, Delhi by virtue of

which two criminal appeals bearing Nos. 29/2006 and

30/2006 titled as Kamal Kant Vs. Sunil Gupta were

treated as disposed of in terms of settlement arrived at

between the parties although the learned MM had

sentenced the respondent to simple imprisonment of two

years and a fine of Rs.5,000/-.

2. Briefly stated the facts leading to the filing of the present

revision petition are that the present petitioner filed two

complaints cases u/s 138 of the Negotiable instruments

Act, 1881 on account of dishonour of cheques. It has been

stated by the learned counsel for the petitioner that in one

case, the cheque amount was Rs.1,40,000/- and in the

other case, the cheque amount was Rs.1,20,000/-. The

respondent after having been found guilty of the offence in

both the cases was sentenced to SI of two years and a fine

of Rs.5,000/- and in default of payment of the said fine,

further SI of 30 days.

3. The complainant namely the petitioner herein was also

granted the benefit of compensation to the extent of

Rs.2,60,000/-. This order of sentence was passed on

26.9.2006.

4. The order of sentence passed by the learned MM does not

prima facie seem to be proper on account of the fact that

there should have been independent sentences in both the

cases rather than clubbing of sentences and imposing only

to one punishment.

5. Be that as it may, the respondent/accused Kamal Kant

filed two separate appeals titled as Kamal Kant Vs. Sunil

Gupta bearing Nos.29/2006 and 30/2006. During the

pendency of these appeals, the present petitioner and

respondent/accused who was the appellant before the

Court of Sessions are purported to have entered into a

settlement on 18.10.2007 at the Mediation Centre. The

terms and conditions of the settlement were given as

under:-

" (1) It is agreed between the parties that a sum of Rs.2,50,000/- (Rs. Two lakhs and fifty thousand) shall be payable by the appellant to the respondent as full and final settlement in respect of the two appeals, mentioned above.

(2) It is agreed between the parties that according to the above said settled amount, a sum of Rs.50,000/- (Rs. Fifty thousand) shall be paid by the appellant to the respondent Sunil Gupta in cash on 20.11.07 before the court of Sh.Mahavir Singhal, Ld. ASJ, KKD, Delhi. (3) It is further agreed between the parties that the appellant shall hand over seven P.D.Cs as security to the respondent No.1 with the date of after every two months, out of which six cheques would be of Rs.30,000/- each and last cheque of Rs.20,000/-.

(4) It is also agreed between the parties that the appellant shall pay six installment of Rs.30,000/- each on every second month between 15th to 20th to the counsel of respondent No.2 namely Sh. K.K. Gambhir Adv in chamber No.D.-204, KKD Courts, Delhi, in the presence of respondent Sunil Gupta and the Ld. Counsel there and then shall return the P.D.C of that installment to the appellant.

(5) It is further agreed between the parties that in case of any default in making the payment, as above, the respondent shall be entitled to get the remaining cheques encashed and would also be entitled to initiate legal action, civil as well as criminal against the appellant, as per law.

(6) The same shall be voluntarily and freely accepted by the appellant and respondent No.1.

(7) Both the parties have undertaken to remain bound by the terms and conditions of the settlement."

6. In terms of the settlement, the parties were directed to

appear before the learned Sessions Judge on 20.11.2007 to

enable the appellant/respondent Kamal Kant to make

initial payment of Rs.50,000/- and also hand over the

remaining six cheques of Rs.30,000/- & the last cheque of

Rs.20,000/- in the form of post dated cheques.

7. The respondent/accused did not appear before the learned

ASJ on 20.11.2007 and on 06.2.2008 and the learned

Sessions Judge had taken note of the fact that the parties

have arrived at a settlement before the Mediation Centre on

18.10.2007 and treated the appeals to have been disposed

of in terms of the said settlement.

8. The present petitioner feeling aggrieved on account of the

disposal of the appeals on the basis of the said settlement

filed the present petition.

9. It has been urged by the ld. counsel for the petitioner that

the respondent /accused has committed fraud inasmuch

as there was a settlement according to which the

respondent/appellant was specifically required to appear

before Sh.Mahavir Singhal, learned ASJ, Karkardooma

Courts, Delhi on 20.11.2007 so as to enable him to make a

payment of Rs.50,000/-. Neither he appeared nor the

initial payment of Rs.50,000/- was received by the

petitioner. This fact could not be brought to the notice of

the learned ASJ as no one was present before him on

06.2.2008. It has been contended by the learned counsel

for the petitioner that after passing of the order on

06.2.2008, he did file an application bringing this fact to

the notice of the learned ASJ. It is urged that since the

terms and conditions of the settlement have not been

adhered to and the learned ASJ, if not on 06.2.2008 but at

least on filing of the application, ought to have considered

the appeal on merits rather than having treated them as

disposed of in terms of the settlement.

10. The respondent/appellant has been served but he did not

appear. I have gone through the records.

11. No doubt, the respondent ought to have been heard but

since he has chosen to remain absent despite having been

served, the Court is not obliged to adjourn the matter for

him.

12. A perusal of the terms and conditions of the settlement

clearly reflects that the respondent was required to make

an initial payment of Rs.50,000/- on 20.11.2007 before the

learned Sessions Judge and thereafter also hand over the

post dated cheques as stipulated in the said settlement.

Since he has not complied with the terms and conditions of

the said settlement, the learned Sessions Judge ought not

to have disposed of the appeal by passing the impugned

order of 06.2.2008 and treated the appeals to have been

settled in terms of the compromise.

13. By permitting the said order to stand it will not only make

the mockery of processes of law inasmuch the respondent

/appellant who has already been convicted yet he is

roaming freely without either suffering imprisonment or

even without making payment of a single penny to the

petitioner. The petitioner cannot be directed to seek

execution of the compromise. It is not a civil case. The

respondent has been guilty of fraud and abuse of the

processes of law and therefore the law must be brought to

its logical conclusion.

14. As a matter of fact if the order dated 06.2.2008 is not set

aside, it will be only putting the seal of legality on an illegal

& improper order because if the respondent did not appear

before the learned ASJ in terms of compromise & pay initial

amount, the appeal ought to have been decided on merits.

15. I, therefore, set aside the order dated 06.2.2008 and

remand the matter back to the learned ASJ. The learned

ASJ is directed to decide the appeal in accordance with law.

The petitioner is directed to appear before the learned

Sessions Judge on 16.9.2009 at 2.00 p.m.

16. With these directions, the present petition is allowed.

V.K. SHALI, J.

SEPTEMBER 02, 2009 RN