Delhi District Court
Devesh Wadhwa vs Praveen Gupta on 25 October, 2018
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
Criminal Revision No.267/2017
268/2017
269/2017
Devesh Wadhwa,
S/o T.D. Wadhwa,
32, Lower Ground Floor,
Okhla Industrial Estate,
Okhla Phase-3,
Delhi-110020. ..... Revisionist
versus
Praveen Gupta,
S/o Inderjeet Gupta,
D-38, 3rd Floor,
Lajpat Nagar, Part-1,
Delhi-110024.
Also At:
A-99 A, 3rd Floor,
Lajpat Nagar, Part-2,
Delhi-110024. ..... Respondent
Date of institution of Revision : 26.07.2017
Date of reserving for order : 27.09.2018
Date of Order : 25.10.2018
Devesh Wadhwa v. Praveen Gupta Page 1 of 10
ORDER
The aforesaid applications under sections 397 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by the applicant Devesh Wadhwa (hereinafter referred to as 'the complainant') against respondent Praveen Gupta (hereinafter referred to as 'the accused'), is directed against similar orders dated 10.01.2017 and 02.03.2017 passed by the court of Metropolitan Magistrate-02, NI Act, South, Saket Courts, New Delhi, whereby, in complaint cases no. 464560/2016, 464586/2016 and 464587/2016, entitled Devesh Wadhwa v. Praveen Gupta, the Learned Metropolitan Magistrate vide order dated 10.01.2017, directed to proceed with the matter on merits, though same had been amicably settled between the parties before the Mediation Centre, Saket Court, New Delhi on 07.05.2016, served the notice under section 251 Cr.P.C. upon the accused and the request of accused under section 145(2) of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the N.I. Act') was allowed.
2. The circumstances giving rise to the applications are that the complainant made three similar complaints under section 138 of the N. I. Act against the accused Praveen Gupta with the view to take cognizance of the offence and to summon, try and punish him for having committed the said offence. The details of complaint case are as follows:-
Devesh Wadhwa v. Praveen Gupta Page 2 of 10CR No. Complaint No. Cheque No. & date Amount in INR 267/2016 464587/2016 405277 10.08.2914 2.5 Lacs 268/2016 464560/2016 405275 10.08.2014 2 lacs 269/2016 464586/2016 405276 10.08.2014 2 lacs
3. The learned Magistrate, after considering the statements on oath of the complainant, was of the opinion that the material on record was sufficient for proceedings, issued process for the attendance of the accused.
4. Pursuant to the process, the accused appeared in the court. The parties showed their willingness to settle the matter involved in the complaints through the process of mediation. The learned Magistrate referred the matter to mediation.
5. In the mediation centre, the parties settled the matter involved in the complaints. Proceedings of mediation centre were received by the learned Magistrate as the case settled.
6. On 25.05.2016, the learned Magistrate exhibited the proceedings of mediation centre and fixed the case for payment of first installment of Rs. 50,000/-.
Devesh Wadhwa v. Praveen Gupta Page 3 of 107. On 10.08.2016, the accused made payment of Rs.40,000/- out of the amount of first installment. Therefore, the learned Magistrate fixed the case for payment of Rs. 60,000/- which was inclusive of Rs.10,000/- of first installment.
8. On the next date i.e. on 10.11.2016, the accused took time for payment and the matter was adjourned. On the next date i.e. on 09.12.2016, again the accused took time for payment of Rs. 1,60,000/- as per mediation settlement and the case was adjourned.
9. On 10.01.2017, the matter was listed for making payment as per mediation settlement dated 07.05.2016 Ex. M in all the connected cases but payment was not made by the accused. On that date, the accused contended that there was a dispute as to payment by the complainant qua some other transaction. Vide the impugned order dated 10.01.2017, the learned Magistrate, inter alia, observed as follows:-
Matter is listed for making payment as per mediation settlement dated 07.05.2016 Ex. M in all connected case bearing CC No. 3033/2014 to CC No. 3035/2014.
Payment not made. It has been stated by the accused that there is dispute as to payment by the complainant qua some other transaction. Considering the fact that since last two dates of hearing accused seeking adjournment for payment and today he is disputing the settlement, it appears that accused is not interested in fulfilling the terms of mediation settlement and is just lingering on the matter, therefore, accused is burdened with costs of Rs. 2000/- to be paid to the complainant on the next date of hearing and matter be proceeded with on merits.Devesh Wadhwa v. Praveen Gupta Page 4 of 10
Heard on the point of framing of notice.
Substance of allegations against the accused have been explained to him in vernacular. Notice U/s 251 CrPC served upon the accused to which accused has pleaded not guilty and claimed trial and further disclosed his defence.
Accused has orally requested to grant leave for cross- examination of the complainant CW1. Arguments heard. Considering the facts and circumstances of the case as well as the defence taken to the notice under Section 251 CrPC, it appears that accused has a valid defence to make and in order to prove the same, cross-examination of the complainant witnesses is essential. Therefore, The oral request of the accused under Section 145 (2) NI Act is allowed.
Considering the nature of the evidence, the cheque amount in question in the present case, I am of the opinion that sentence of imprisonment for a term exceeding one year may have to be passed and it is undesirable to try the present case summarily and therefore, the present case shall be trial as a summons case under Chapter 20 of the Criminal Procedure Code.
Relist for cross-examination of the complainant CW-1 on 02.03.2017.
10. Vide order dated 02.03.2017, learned Magistrate, inter alia, observed as under:-
Previous cost not paid and accused undertakes to pay the same on the NDOH.
The complainant has filed an application u/s 15 (2) of the Contempt of Courts Act against the accused. Copy supplied. Ahlmad is directed to institute the same as separate miscellaneous application and accused is given opportunity to reply the same on or before NDOH with advance copy to the complainant.
As far as the request of the complainant to stay the proceedings of the present complaint during the pendency of contempt application is concerned, the same is not a ground to stay the proceedings of present complaint as the cause of action of the present complaint and the cause of action of contempt application are entirely different and by no stretch of imagination, these proceedings can be clubbed together. Therefore, let the proceedings of present complaint be taken on trial.
Complainant cross-examined in part and further cross- examination is deferred with directions to the witness to bring documents.
Put up for further cross-examination of CW-1 on 05.05.2017.Devesh Wadhwa v. Praveen Gupta Page 5 of 10
11. Feeling aggrieved of the impugned orders, the appellant has preferred the present revision with the following prayer: -
In view of the above submission, it is most respectfully prayed that the original record of the complaint case be summoned for examination to satisfy regarding the correctness, legality and proprietary of the findings reached at by the learned Metropolitan Magistrate.
It is further prayed that the aforesaid finding be set-aside and suitable directions be issued in this regard, in the interest of justice, in the facts and circumstances of the case. Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case may be passed in favour of the complainant and against the respondent.
12. I have heard counsel for the parties and have gone through the record of the complaint case no. 464560/2016, 464586/2016 and 464587/2016 entitled Devesh Wadhwa v. Praveen Gupta, pending before the learned Magistrate.
13. Having drawn my attention on the contents of the application, the impugned orders dated 10.01.2017 and 02.03.2017 and the record of complaint cases, pending before the Learned Magistrate, it is submitted by counsel for the revisionist that the learned Magistrate committed a jurisdictional error in reviving the complaint and ordering for trial of the complaint on merits. It is further submitted by counsel for the revisionist that once the matter had been amicably and finally settled between the parties before the Devesh Wadhwa v. Praveen Gupta Page 6 of 10 Mediation Centre and the correctness and applicability of the same had been admitted before the learned Metropolitan Magistrate and further in view of the fact that it had been implemented in part when part payment of first installment, as per mediation settlement Ex. M, had been made before the learned Magistrate, the learned Magistrate could not have reverted back to the stage of pre-mediation stage and ordered for trial of the complaint on merits. It is further submitted by counsel for the revisionist that the learned Magistrate committed a grave jurisdictional error as the settlement reached at between the parties before the Mediation Centre was bound on the learned Magistrate and the same could not have been reversed altogether by the learned Magistrate. It is further submitted by counsel for the revisionist that the duty and function of the learned Magistrate on receipt of the settlement was to implement the settlement and for that could have taken the steps for the enforcement of the same but had ceased to have power to order trial of the complaint on merits. It is further submitted by counsel for the revisionist that the learned Magistrate should have stayed the proceedings on 02.03.2017 when request for the same was made in view of the filing of the contempt proceedings by the complainant against the respondent. Counsel for the applicant has referred to the judgment in Dayawati v. Yogesh Kumar Gosain, 243 (2017) DLT 117 (DB) in support of his arguments.
Devesh Wadhwa v. Praveen Gupta Page 7 of 1014. Per contra, the learned counsel for the respondent submitted that the judgment referred to on behalf of the applicant is not applicable in this case as it was delivered after the passing of impugned orders.
15. I have given my thoughtful consideration to the submissions made on behalf of the parties.
16. As I have already observed above, during the pendency of complaints under section 138 of the N.I. Act, the parties settled their disputes through the process of mediation. Thereafter, the Learned Magistrate exhibited the proceedings of settlement of Mediation Centre and adjourned the matter for making payments of installments. The accused made part payment of one installment and took time on few occasions for making payment of remaining installments but on a later date, refused to make payment on the pretext that there was a dispute as to payment by the complainant qua some other transaction.
17. The Hon'ble Delhi High Court has, in the judgment referred to on behalf of the applicant in Dayawati's case (supra), laid down the guidelines to be followed in cases where the dispute has already been referred to mediation- what is the procedure to be followed thereafter and the Devesh Wadhwa v. Praveen Gupta Page 8 of 10 procedure to be followed if the settlement in mediation is not complied with. The Hon'ble High Court has, in Dayawati's case (supra), inter-alia, held as follows:-
Question IV: If the settlement is Mediation is not complied with - is the court required to proceed with the case for a trail on merits, or hold such a settlement agreement to be executable as a decree?
In case the mediation settlement accepted by the court as above is not complied with, the following procedure is required to be followed:
IV(i) In the event of default or non-compliance or breach of the settlement agreement by the accused persons, the magistrate would pass an order under Section 431 read with Section 421 of the Cr.P.C. to recover the amount agreed to be paid by the accused in the same manner as a fine would be recovered.
IV(ii) Additionally, for breach of the undertaking given to the magistrate/court, the court would take appropriate action permissible in law to enforce compliance with the undertaking as well as the orders of the court based thereon, including proceeding under Section 2(b) of the Contempt of Courts Act, 1971 for violation thereof.
Question V: If the Mediated Settlement Agreement, by itself, is taken to be tantamount to a decree, then, how the same is to be executed? Is the complainant to be relegated to file an application for execution in a civil court? And if yes, what should be the appropriate orders with respect to the criminal complaint case at hand. What would be the effect of such a mediated settlement vis-a-vis the complaint case?
V(i) The settlement reached in mediation arising out of a criminal case does not tantamount to a decree by a civil court and cannot be executed in a civil court.
However, a settlement in mediation arising out of referral in a civil court, can result in a decree upon compliance with the procedure under Order XXIII of the C.P.C. This can never be so in a mediation settlement arising out of a criminal case.
18. Contention raised on behalf of the accused that the judgment in Dayawati's case (supra) is not applicable as these guidelines were delivered after passing of impugned orders, is Devesh Wadhwa v. Praveen Gupta Page 9 of 10 not sustainable.
19. In the light of guidelines laid down by Hon'ble Delhi High Court in Dayawati's case (supra), I am of the considered view that the Learned Magistrate did not follow the correct procedure when the settlement in mediation was not complied with by the accused, accordingly, the impugned orders dated 10.01.2017 and 02.03.2017 and the proceedings consequent thereupon are hereby set aside.
20. File be consigned to the Record Room. The record of the complaint case No. 464560/2016, 464586/2016 and 464587/2016 entitled Devesh Wadhwa v. Praveen Gupta, called from the court of the learned Magistrate be sent back along with a copy of this order with the direction to the Learned Magistrate to proceed with the complaint in accordance with the guidelines laid down in Dayawati's case (supra).
21. The parties are directed to appear before the learned trial court on 30.10.2018 at 2 PM.
Pronounced in the open court (DR. RAKESH KUMAR)
on 25th October, 2018 Special Judge (PC Act) (CBI)
South District, Saket Courts,
Digitally signed by New Delhi
RAKESH RAKESH KUMAR
KUMAR Date: 2018.10.25
15:24:59 +0530
Devesh Wadhwa v. Praveen Gupta Page 10 of 10