RAJKUMAR KUCHHAL Vs. LOYAL LOGISTICS PVT. LTD.

JUDGEMENT

(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 presummoning 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:-

(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 postdated 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.