Luminous Power Technology P. Ltd. vs Amit Kumar Verma
2014 Latest Caselaw 5806 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 14th November, 2014

+       CRL. M.C. 3132/2013

LUMINOUS POWER TECHNOLOGY P. LTD.            ..... Petitioner
                 Through: Mr. Sanjay Goswami, Advocate.

                         versus

AMIT KUMAR VERMA                                         .....Respondent
                Through:                 Mr. Adarsh Ganesh, Advocate.


CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. The petitioner has preferred the present petition under Article 227 of the Constitution of India read with Section 482 Code of Criminal Procedure, 1973 against order dated 22.06.2013 passed by learned Metropolitan Magistrate-01 (NI Act) West, Tis Hazari Courts, Delhi in CC No.598/1.

2. In a nut shell the facts of the case are that the petitioner/ complainant filed a complaint for the offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as „NI Act‟) in respect of dishonour of cheque bearing No.248683 dated 18.07.2012 for Rs.28,49,782/- (Rupees Twenty eight lakhs forty nine thousand seven hundred eighty two). After recording pre-summoning evidence, the respondent was summoned.

3. Learned trial court referred the matter to Mediation Centre, Tis Hazari Courts, Delhi. Both the parties entered into a settlement and a settlement/ agreement dated 18.02.2013 was recorded by the Mediator. Copy of the same is placed as Annexure A-3 to the petition. It was agreed between the parties that the respondent/ accused shall pay a sum of Rs.26,00,000/- (Rupees Twenty six lakhs) towards full and final settlement to the petitioner/ complainant. Out of the settled amount Rs.5,50,000/- (Rupees Five lakhs fifty thousand) was to be paid on or before 25.02.2013, Rs.7,50,000/- (Rupees Seven lakhs fifty thousand) on or before 31.03.2013 and the remaining amount of Rs.13,00,000/- (Rupees Thirteen lakhs) was to be paid on or before 31.08.2013. It was further agreed that the accused will pay a minimum sum of Rs.1,25,000/- (Rupees One lakh twenty five thousand) by 15th of each English calendar month for the month of April, May, June and July respectively and the balance amount of Rs.8,00,000/- (Rupees Eight lakhs) shall be paid by the accused on or before 31.08.2013. It was also agreed that in case of default by the accused, the complainant shall be at liberty to revive the case as per law. However, the respondent/ accused made payment of first instalment of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) and failed to make payment of the balance amount.

4. Vide order dated 22.06.2013 learned trial court served notice under Section 251 Cr.P.C. on the respondent. The respondent sought time for moving proper application under Section 145(2) of NI Act. Due to failure of mediation, the complainant was directed to return back the received instalment of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) to

the accused and it was further ordered that the matter be proceeded on merit.

5. Feeling aggrieved by the said order, the petitioner has filed the present petition.

6. The petitioner supplied goods to the respondent, respondent issued cheque bearing No.248683 dated 18.07.2012 for Rs.28,49,782/- (Rupees Twenty eight lakhs forty nine thousand seven hundred eighty two) drawn on Oriental Bank of Commerce, Nalanda, Bihar in discharge of liability. On presentation, the said cheque was dishonoured with the remarks "exceeds arrangement". The petitioner served a legal notice dated 30.07.2012 and despite service of notice respondent failed to make the payment of the cheque. He also submits that the respondent agreed to pay a sum of Rs.26,00,000/- (Rupees Twenty six lakhs) before the Mediator on 18.02.2013, respondent paid the first instalment of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) and did not pay the balance amount.

7. Learned counsel for the petitioner also urges that it was agreed between the parties that in case the respondent fails to make the payment of the settled amount, the petitioner shall be at liberty to revive the case but it was not agreed that the petitioner will refund the amount paid by respondent.

8. Per contra, learned counsel for respondent contends that in view of clause (4) of settlement agreement dated 18.02.2013, the petitioner was to resume and continue the business after receiving the first instalment of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) and the parties were to

maintain good business relations but the petitioner did not continue the business with the respondent. The petitioner failed to perform reciprocal promise. He also submits that the petitioner is liable to refund the amount paid by the respondent.

9. I have carefully considered the submissions made by learned counsel for both the parties.

10. Admittedly, both the parties entered into mutual settlement before the Mediator on 18.02.2013 and the respondent agreed to pay Rs.26,00,000/- (Rupees Twenty six lakhs) towards full and final payment on the basis of which schedule of payment was prepared. It is also not disputed that the respondent made payment of first instalment of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) and did not pay the balance amount. Due to failure to perform the terms of settlement the complaint was revived and notice under Section 251 Cr.P.C. was served on 22.06.2013.

11. So far as the refund of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) by the petitioner is concerned, it may be mentioned that the interest of justice requires that balance has to be maintained and interest of both the parties has to be secured. In my view in the interest of justice would be met, if the petitioner is directed to deposit Rs.5,50,000/- (Rupees Five lakhs fifty thousand) by way of fixed deposit receipt before the trial court.

12. Having considered the facts and circumstances of the case, it is directed that the petitioner shall deposit a fixed deposit receipt in the sum of Rs.5,50,000/- (Rupees Five lakhs fifty thousand) in the name of trial

court initially for a period of one year within a period of four weeks subject to final decision of the complaint case. In case, the complaint is dismissed, the said amount along with interest would be refunded to the respondent.

13. Since the complaint is pending since 2012, learned trial court is directed to decide the case expeditiously.

14. With the aforesaid observations, the petition stands disposed of.

Crl. M.A. No.11721/2013 The application is dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE NOVEMBER 14, 2014 hs