Delhi District Court
Vinod Kumar Babuta vs Bhupinder Singh And Anr on 5 October, 2024
Page 1 of 22
IN THE COURT OF MS. SEEMA MEENA
JMFC (N. I. ACT) DIGITAL COURT-04, SOUTH-WEST
DWARKA COURTS, NEW DELHI
CC NI ACT NO: 26195/2021
MR. VINOD KUMAR BABUTA,
S/o Late Mr. Amaranth,
R/o A-129, Vikas Puri,
New Delhi-110018 .........Complainant
Versus
MR. BHUPINDER SINGH,
S/o Late Mr. S. Ranjeet Singh,
R/o E-2, Guru Nanak Pura,
Jail Road, New Delhi-110058.
Mob:9891190000 & 9953490000 .......... Accused
Offence Complained of or proved : U/S 138 NI Act
Plea of the Accused : Pleaded not guilty
Date of filing : 24.02.2022
Date of Institution : 25.02.2022
Date of pronouncement of judgment : 05.10.2024
Final Order/Judgment : CONVICTED
JUDGMENT
1. This criminal complaint was filed by the complainant against the accused under section 138 of the Negotiable Instruments Act, 1881. (Hereinafter be referred to as the NI Act).
2. Briefly put, FIR No.77/2021 U/s 406/420/34 IPC, PS Digitally signed by VikasPuri was lodged against the Bhupinder Singh (accused in Seema Seema Date:
meena meena 2024.10.05 16:01:28 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 2 of 22 present matter) and Dilpreet Singh on the basis of the complainant's complaint. The accused persons in said FIR moved application for anticipatory bail concerned Ld. Sessions Court, Dwarka Court, New Delhi. During the pendency of the said bail application, the applicants/accused persons were referred to Mediation Centre, Dwarka Court. As per complaint, both parties settled the dispute vide mediation settlement order dated 23.02.2021. As per the agreed terms of settlement, the accused had to pay Rs.1,80,00,000/- to the complainant out which the accused paid Rs.25,00,000/- in cash and agreed to pay the balance amount of Rs.1,55,00,000/- in five installments. In pursuance of the agreement, accused Bhupinder issued five cheques against the payment of Rs.1,55,00,000/-, the details of the cheques are as under: -
i. Cheque bearing no.000621 dated 23.04.2021 for the sum of Rs.25,00,000/- drawn in Punjab & Sindh Bank, Peera Garhi Branch, Delhi.
ii. Cheque bearing no.000623 dated 23.06.2021 for the sum of Rs.35,00,000/- drawn in Punjab & Sindh Bank, Peera Garhi Branch, Delhi. ("Cheque in question") iii. Cheque bearing no.000624 dated 23.08.2021 for the sum of Rs.25,00,000/- drawn in Punjab & Sindh Bank, Peera Garhi Branch, Delhi.
iv. Cheque bearing no.000625 dated 23.10.2021 Digitally for the sum of Rs.35,00,000/- drawn in Punjab & Seema signed by Seema meena Sindh Bank, Peera Garhi Branch, Delhi. meen Date:
2024.10.05
a 16:01:43
+05'30'
CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr
Page 3 of 22
v. Cheque bearing no.000627 dated 23.12.2021
for the sum of Rs.35,00,000/- drawn in Punjab & Sindh Bank, Peera Garhi Branch, Delhi.
3. It was agreed between the parties that accused persons in the said FIR case shall make the payment of the cheque amount to the complainant against the receipt on or before the date of maturity of each of the abovementioned cheques and the complainant shall return the cheques to the accused after receipt of payment against the issued cheques. It was also agreed that in case if the accused no.1 & 2 fails to make the payment of the cheques amount to the complainant before the date of maturity of the cheque, then the complainant can present the said cheques in concerned bank for encashment and the accused persons would make sure that the said cheque would be honoured on its presentation and it was also agreed between the parties that in case the above cheques got dishonoured, the accused persons shall pay the 10% of the cheque amount to the complainant as penalty over and above the cheque amount. However, the accused persons in said FIR case failed to pay the amount as per mediation settlement order. Thus, the complainant presented the cheque in question before concerned bank on 26.04.2021,but the same returned back vide return memo dated 27.04.2021 with remarks "Insufficient funds".
4. In order to escape from liability, the accused persons raised objection regarding the settlement deed dated 23.02.2021. However, the said submissions were rejected by the Court of Ld. ASJ (FTFC) (RC), South-West, Dwarka Court, New Delhi vide order dated 23.06.2021. Ld. Sessions Court observed that the mediation settlement order is valid and binding upon both the parties. Being Digitally signed Seema bymeena Seema CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr meena 2024.10.05 Date:
16:01:52 +05'30' Page 4 of 22 aggrieved from the order dated 23.06.2021, the accused persons approached the Hon'ble High Court of Delhi, but they did not get relief qua the said mediation settlement order.
5. Thus, after many attempts to seek payment from the accused, the complainant served a legal notice dated 21.05.2021 through speed post requesting for payment of the amount of the cheque in question. However, the accused failed to make the payment of amount of cheque in question within fifteen days from the date of service of legal notice. Hence, the complainant filed the present complaint u/s 138 NI Act against Bhupinder Singh and Dilpreet Singh.
6. It is to be noted that the complaint has been filed within the limitation period as per Section 142 of N.I. Act, and the territorial jurisdiction to try the present complaint vests with this Court.
Further, vide order dated 03.09.2022, Ld. Predecessor Court took cognizance of offence u/s 138 NI Act, and summoned the accused Bhupinder Singh noting that the Dilpreet Singh is not the signatory of the cheque in question. Thus, the proceedings qua Dilpreet Singh were dropped vide order dated 03.09.2022. Thereafter, accused appeared on 17.02.2023, Notice under section 251 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C) was served upon him on 27.02.2023, where the substance of the allegation against him was read over and explained to him. The accused pleaded not guilty and claimed trial.
7. While disclosing his defence, the accused stated that he never took any money from the complainant. The complainant got a false FIR registered against him and his son just right before his Digitally signed by Seema Seema Date:
meena daughter's wedding. Out of pressure, he entered into a compromise meena 2024.10.05 16:02:10 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 5 of 22 with the complainant in the Mediation Centre, Dwarka Court pursuant to which he issued the cheque in question in favour of the complainant. Thereafter, his anticipatory bail application was rejected by the Ld. Sessions Court after which he approached the Hon'ble High Court for anticipatory bail. The Hon'ble High Court of Delhi granted the anticipatory bail subject to depositing of Rs.55 Lakhs. After that, since he was not under any pressure, he did not consider necessary to ensure clearance of the cheque in question. Thereafter, the accused moved an application under Section 145(2) of NI Act which was allowed and the complainant was cross- examined.
8. In order to prove his case, the complainant tendered his evidence by way of affidavit vide Ex CW1/A and got himself examined as CW-1 and has further relied on the following documents:
i. Ex.CW1/1 & Ex. CW1/2 are copy of FIR and settlement dated 23.02.2021 ii. Ex.CW1/3 is cheque in question, iii. Ex CW1/4 is return memo iv. Mark "A" is order dated 23.06.2021 of Hon'ble High Court of Delhi.
v. Mark "B" is order dated 06.08.2021 of Hon'ble High Court of Delhi.
Seema bymeena Digitally signed vi. Ex. CW1/5 is Legal demand notice, Seema meena Date: 2024.10.05 16:02:17 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 6 of 22 vii. Ex CW1/6 is Speed Post Receipt, viii. Ex CW1/7 original courier receipt, ix. Ex. CW1/8 & Ex. CW1/9 is tracking report.
9. The complainant/CW-1 was duly cross-examined by Ld. Counsel for the accused. Thereafter, complainant led no other evidence and CE was closed on 22.08.2023. The accused was examined u/s. 313 Cr.P.C. All the incriminating material against him was put to the accused, and the accused was given an opportunity to offer explanation qua the same, the accused stated that due to his daughter's wedding, the complainant forcefully made him sign the settlement agreement. He stated that he had paid cash of Rs.25 Lakhs to the complainant as a part payment towards the settlement agreement and agreed to pay the balance of Rs.1,55,00,000/- in five installments. He had issued five cheques towards the settlement bearing his signatures only; however, at present he may not remember whether he had filled any amount in the five cheques issued to the complainant since he was under tremendous pressure. He had received a message from his bank regarding the return memo. Further, he stated that Hon'ble High Court of Delhi granted him anticipatory bail. As per conditions imposed by Hon'ble High Court of Delhi, his FDR amounting Rs.55 Lakhs was retained. He admitted that received the legal notice from the complainant and his counsel independently sent the legal notice to the complainant not to present cheque in question. He had issued only five cheques towards the settlement agreement. The complainant forced him to enter into Digitally the settlement. He had no choice to enter into the same. The present Seema signed by Seema meena Date:
meena 2024.10.05 complaint filed against him is false and he does not owe any liability 16:02:28 +05'30' towards the complainant. When queried to this effect, the accused CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 7 of 22 opted to lead D.E. However, no witness was examined by the accused. It is to be noted that Ld. Counsel for the accused filed certified copies of the plaint and orders passed by Ld. ASJ, South- West, Dwarka Court as Ex. DW1/1 (Colly).
10. Ld. Counsel for the complainant reiterated the averments made in the complaint. He submitted that the complainant has proved all the ingredients of the offence under section 138 NI Act. Further argued that the defence of the accused regarding him signing the agreement out coercion or undue influence is not proved as he has not led any evidence in this regard. Further, he submitted that mediation settlement order is valid and has legal sanctity in the eyes of law. The complainant relied upon the judgments of the Hon'ble High Court of Delhi in Naveen Kumar vs. Smt. Khilya Devi & Anr. GS (OS) No. 2248/2010, Double Dot Finance Limited vs. Goyal MG Gases Ltd. 2005 (2) (Delhi) 534. The accused led no evidence in the present matter to substantiate his claims. The accused admitted the execution of cheque in question, which establishes his liability towards the complainant. Therefore, the accused is liable to be convicted under section 138 of N.I. Act.
11. Per contra, Ld. Counsel for the accused submitted that the cheque in question was issued to the complainant without any consideration as there is no legal liability upon the accused towards the complainant. It was submitted that the settlement agreement is infructuous as the same was executed by the accused out of undue pressured and coercion. It is submitted that the said agreement is not valid and the same is hit by doctrine of merger as the Hon'ble High Digitally of Delhi has granted anticipatory bail to the accused subject to Seema signed by Seema meena Date:
meena 2024.10.05 payment of Rs. 55 Lakhs to be deposited Ld. Registrar General of 16:02:36 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 8 of 22 Hon'ble High Court of Delhi. It was also submitted that the present complaint is time barred. The complainant has no financial capacity to prove the present transaction. Ld. Counsel has placed his reliance on Kunhayammad& Ors. vs. State of Kerala & Anr. AIR 2000 SC 2587Jageram Karam Singh & Anr. vs. State and Anr. 265 (2019) DLT 374, G. Pankajashi Amma & Ors. vs. Mathai Methew (2004)
12 SCC 83.
12. Final arguments were heard at length. Both the parties have filed the written arguments.
13. It would be appropriate to briefly discuss law applicable to the defence of dishonor of cheque before finding of conviction. The legal position that emerges, from reading of S.138 N.I. Act, is that before finding of conviction with the offence punishable Section 138 N.I. Act can be returned against the accused, it has to be established, cumulatively-
i. The cheque was drawn by the accused on an account maintained by him with a bank for payment of a certain amount of money to another person from out of that account;
ii. That the cheque was issued in discharge of any debt or liability;
iii. That the cheque has been presented to the bank within a period of 3 months from the date on which it was drawn or within the period of its validity, whichever is earlier;
Seema Digitally by Seema signed meen Date:
meena 2024.10.05 a 16:02:45 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 9 of 22 iv. That the cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
v. The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
vi. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
14. The language of section 138 NI Act leaves no room for doubt that only when all the above ingredients are satisfied can the drawer of the dishonoured cheque be said to have committed an offence under section 138 NI Act. It is also pertinent to note that Section 138 of the NI Act cannot be read in isolation and has to be read along with sections 139 and 118 of the NI Act, which entitle the payee or holder in due course to certain presumptions of law. It is relevant to state aforementioned provisions of NI Act, which are as follows:
"Section 139- Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the Digitally signed by holder of a cheque received the cheque of the nature Seema Seema meena Date:
meena 2024.10.05 16:02:53 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 10 of 22 referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
15. Section 139 of the NI act, being a reverse onus clause, is an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. This provision stipulates a presumption in favour of the complainant with regard to the existence of a legal debt or liability.
16. Once presumption is drawn against the accused u/s 139 of NI Act, the accused has to offer on something that makes his version probable. This the accused can do by both successfully raising and proving competing version to the case of the complainant or by perforating the case of the complainant. Opportunity to do this arises for the accused at four stages:
i. When the accused puts forth defence at the time of when his plea of defence as recorded after the substance of acquisition is explained to him u/s 251 Cr.P.C.
ii. When the accused cross-examine the complainant pursuant to his application u/s 145(2) N.I. Act being allowed.
iii. When the statement of the accused is recorded u/s 313 Cr.P.C.
iv. When the defence witness was examined.
Digitally signed by Seema Seema meena
17. The stand taken by the accused at all these stages shall be meena Date:
2024.10.05 16:03:01 examined to determine if the accused could raise a probable +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 11 of 22 defence on the touchstone of benchmark set in the judgment as held by Hon'ble Supreme Court of India in Kumar Exports vs. Sharma Carpets (2009)2 SCC 513
18. Coming to the first ingredient of the offence, drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability. It is stated by the complainant that the accused has issued the cheque in question in pursuance of the mediation settlement order dated 23.02.2021 (Ex. CW-1/2), however, upon presentation, the cheque in question got dishonoured.
19. Upon analyzing the statements of the accused recorded u/s 251 Cr.P.C and Section 313 Cr.P.C., it is not in dispute that accused has issued cheque in question as per said settlement order. It is also admitted that the cheque in questions bears his signature. Further, it is also not in dispute cheque in question has been drawn from the account of accused. Thus, the execution of cheque is not in dispute as the accused has specifically admitted that the said cheque was signed and issued by him in pursuance of mediation settlement order dated 23.02.2021.
20. Considering the above factual position, it is important to reproduce Sec.118 (a) and Sec.139 of the N.I. Act here.
Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, Digitally signed by Seema Seema meena Date:
meena 2024.10.05 16:03:09 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 12 of 22 endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration."
21. Further, Section 139 of the Act states that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
22. The nature and scope of the abovementioned presumptions have been discussed in the cases of Hiten P. Dalal vs. Bratindranath Banerjee, (2002) 6 SCC 16 and Rangappa vs. Sri Mohan, (2010) 11 SCC 441 wherein it was observed by the Hon'ble Supreme Court of India that section 139 of NI Act, being a presumption of law, makes it mandatory for the Court to draw a presumption in every case where the foundational facts required raising such presumption have been successfully established by the complainant. The Court further held that the accused, against whom the presumption is raised, is not prevented from rebutting this presumption. This rebuttal, or rather the defence taken by the accused, the Court clarified, need not be conclusively established and the accused is required to only lead such evidence that causes the Court to either believe the defence to exist or consider its existence to be reasonably probable. Hence, the standard of proof for the accused is that of "preponderance of probability" and not "beyond reasonable doubt". The accused can successfully rebut the presumption raised against him by raising a probable defence or by discrediting or creating doubts in the case of the complainant. In order to do this, the accused may either lead evidence of his own or he can simply rely on the materials submitted by the complainant.
Digitally signedSeema bymeena Seema meena 2024.10.05 Date:
16:03:16 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 13 of 22
23. Further, it is well settled law that once the execution of cheque is admitted, section 139 of the NI Act mandates the drawing of the presumption that the cheque was issued in discharge of any debt or other liability. Reliance in this regard is placed on the recent case of Basalingappa vs. Mudibasappa (2019) 5 SCC 418. It is also pertinent to note that, as per the Rangappa vs. Sri Mohan (2010) 11 SCC 441passed by Hon'ble Supreme Court of India, the presumption mandated by the said legal provision is not just with respect to the existence of a debt or liability but rather the existence of a legally enforceable debt or liability. Moreover, once the statutory presumption has been raised in favour of the complainant, the burden of proof now lies upon the accused to rebut the statutory presumption as per the reverse onus of proof that now shifts upon the accused.
24. In the present matter, the defence taken by the accused while framing of notice under section 251 Cr.P.C. and also his statement recorded under section 313 Cr.P.C. shows that the accused had entered into settlement with the complainant before mediation Centre, Dwarka Courts. As per the terms of mediation settlement order, he issued cheque in question in favour of the complainant. In the case of K.N. Beena vs. Muniyappan AIR 2001 SC 2000, it was established as follows "In complaint u/s 138 the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable, however, the burden of proving that the cheque has not been issued to the complainant by the accused for the discharge of debt or liability, lies on the accused".
25. In view of above discussion and admission of the accused, Ex. CW1/2 Mediation Settlement dated 23.02.2021 stands proved. It is Seema meena Digitally signed by Seema meena Date: 2024.10.05 16:03:25 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 14 of 22 proved that both parties entered into mediation settlement. It is also proved that the accused signed and issued the cheque in question in favour of the complainant as per the agreed terms as mentioned in the said settlement. Thereafter, the said cheque was presented before the concerned bank by the complainant within limitation. However, the said returned dishonored vide return memo (Ex.CW1/4) dated 27.04.2021 with remark "Funds insufficient". It is to be noted that the accused has admitted the fact the he has received a legal notice (Ex. CW1/5) sent by the complainant for payment of amount as mentioned in the cheque in question. Hence, the ingredient of Section 138 NI Act is duly proved. Further, the complainant is entitled to the presumption of Section 139 r/w 118(a) NI Act.
26. The defence of the accused is majorly three-fold. Firstly, Ld. Counsel for the accused has submitted the mediation settlement order (Ex. CW1/2) in infructuous. Secondly, the mediation settlement is hit by Doctrine of Merger. Lastly, the cheque in question was issued without consideration out of coercion and undue pressure.
27. Before going into the merits, it is to be noted that present complainant is maintainable under section 138 of N.I. Act, 1881. This Court places its reliance on a case titled as "Gimpex (P) Ltd. vs. Manoj Goel, 2021 SCC OnLine SC 925", wherein the Hon'ble Supreme Court held that "dishonour of fresh set of cheques issued in compliance of the settlement agreement would give rise to a fresh cause of action attracting liability under Section 138 of the NI Act and other remedies under civil law and criminal law. However, it was categorically held that the settlement agreement subsumes the original complaint and hence, the original complaint Digitally signed by Seema Seema Date:
meena meena 16:03:33 2024.10.05 CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr +05'30' Page 15 of 22 cannot be proceeded with once a settlement agreement has been executed".
28. As discussed above, it is argued by the accused the mediation settlement order (Ex. CW1/2) is infructuous and the same was executed by him out of fear and undue pressure. In view of this Court, the inception of the present is FIR No.77/2021 U/s 406/420/34 IPC, PS Vikas Puri lodged against accused and his son. The accused approached the Ld. Session Court for the anticipatory bail. As per available record, it shows that the interim protection was granted to the accused Bhupinder Singh by Ld. Sessions Court. It also shows that both the parties were referred to Mediation Centre to explore the possibility of settlement. Further, both parties settled the controversy vide separate order i.e. Ex. CW-1/2. As per settlement agreement, the accused agreed to 1,80,00,000/- to the complainant. Out of the settled amount, the accused admittedly paid Rs. 25,00,000/- to the complainant in cash and for the remaining amount, he issued five Post-Dated cheque including cheque in question in favour of the complainant. The complainant presented cheque in question before concerned bank, but the same returned dishonored with the remark "Funds Insufficient". It is pertinent to mention that the issue not complying with the settlement agreement was raised before concerned Ld. Sessions Court. The Court observed that the said agreement Ex. CW-1/2 is legally valid and binding upon both the parties. The relevant portion of the said order of Ld. Sessions Court is as follows:
Digitally "39. In the light of above discussions and signed by Seema Seema meena Date:
meena 16:03:40 2024.10.05 observations, this court is of the view that the +05'30' mediation settlement entered between the parties on CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 16 of 22 23rd February 2021 is a legally valid and binding agreement. The parties to mediation settlement are bound to follow the same. The aforesaid mediation settlement has been accepted by Court by its order dated 23rd April 2021 and it is imperative duty of the Court to ensure its compliance.
40. Accordingly, both the parties are directed to forthwith comply with the Mediation Settlement dated 23rd April 2021. Since the accused persons have breached the 1st installment dated 23rd April 2021 and the second installment is also falling due today on 23rd June 2021, therefore in the interest of justice, the accused persons are granted 15 day from today to pay both the aforesaid installments as per the mediation settlement to the complainant and in the event of default, the interim protection granted to the accused persons would stand as withdrawn as well as the application for seeking anticipatory bail would stands as dismissed".
29. As per order dated 23.06.2021 passed by Ld. Sessions Court, it is clear that the mediation settlement order Ex. CW-1/2 was found to be valid and enforceable. It is pertinent to mention that the accused approached the Hon'ble High Court of Delhi for anticipatory bail. The Hon'ble High Court of Delhi was pleased to grant the anticipatory bail to accused and his son vide order dated 06.08.2021. The Hon'ble High Court of Delhi had given directions to accused, which are as follow: Digitally signed by Seema Seema meena Date:
meena 2024.10.05 16:03:48 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 17 of 22 "9. It may be noted that apparently the case of the complainant was that out Rs 4,00,00,000/-, Rs.
2,00,00,000/- have been already been returned and the for the balance amount of Rs. 2,00,00.000/-, a settlement was arrived at for a sum of Rs.
1,80,00,000/- before the Mediation Centre out of which the petitioner gave cash of Rs. 25,00,000/- and four post-dated cheques, however, the cheques got bounced but to show his bonafide the petitioners have deposited a further amount of Rs. 55,00,000/- with the Registrar General of this Court on 3 rd August, 2021 as part payment on the basis of which settlement has been arrived at before the mediation Centre and the fact that besides the admission of the petitioner of the liability whether the said amount was due or not is still to be investigated by the investigating agency, this Court deems it fit to grant anticipatory bail to the petitioner subject to their joining investigating. Consequently, in the event of arrest, the petitioners are directed to be released on anticipatory bail on their furnishing a personal bond to the sum of Rs. 50,000/- each with one surety of the like amount subject to the satisfaction of the arresting officer/SHO concern, further subject to the condition that the petitioner will not leave the country without the prior permission of the Court concerned and in case of change residential address and/or mobile number the same will be intimated to Digitally the concerned Court by way of an affidavit. Further, signed by Seema Seema meena Date:
the amount of Rs. 55,00,000/- which has been meena 2024.10.05 16:03:56 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 18 of 22 deposited as FDR in the name of the Registrar General of this Court, will be kept in auto renewal mode and will be subject to the outcome of trial or any further settlement arrived at between the parties."
30. Thus, in view of order Hon'ble High Court of Delhi and Ld. Session Court, it is established that the Mediation Settlement Order Ex. CW-1/2 is valid and enforceable. As per order dated 06.08.2021, the Hon'ble High Court of Delhi has not passed any order qua the said agreement rather it had directed that FDR of amount of Rs. 55 Lakhs be retained in case FIR 77/2021 PS Vikas Puri. Hence, it is proved that the said settlement agreement is not infructuous. It is also to be noted that the accused has taken the defence he succumbed to the demands of complainant in the Mediation Centre as he was under pressure due to his daughter's wedding. Thus, he had signed the agreement and issued the cheque in question without free will and undue pressure. In view of this Court, there is no evidence available on record to substantiate the claim of the accused. There is nothing on record which shows that the accused had raised the similar objection before Hon'ble High Court of Delhi or Ld. Sessions Court. There is nothing on record which suggests that he filed any application or submission before concerned Court to declare the said agreement as null and void. In view of this Court, if the accused had signed the agreement without his free consent, he would have instructed the bank to stop the payment of cheque in question. However, cheque in question was dishonored for the reasons that he did have sufficient fund to same. It is pertinent to mention that the accused was given an opportunity to lead defence evidence, but he chose not to examine himself or any other witness Digitally signed by Seema Seema Date:
meena CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr meena 16:04:05 2024.10.05 +05'30' Page 19 of 22 in support of his bald allegations. The defence of the accused is not substantiated by any evidence. Furthermore, the accused has failed to show any contradiction or variation in the cross-examination CW- 1 to prove that the agreement entered by the accused without his free will. Thus, in the absence of evidence, the defence of the accused is not tenable. Reliance in this regard can also be placed on the decision of Hon'ble Supreme Court of India in case of Sumeti Vij vs. Paramount Tech Fab Industries (Cr. A 292 of 2021) wherein it was held that "the statement of the accused recorded u/s 313 of the Code is not substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused.".
31. Ld. Counsel for the accused has also contended that the mediation settlement agreement is directly hit by the "Doctrine of Merger". It is submitted by Ld. Counsel for the accused that the accused has already deposited the amount of Rs. 55 Lakhs with Hon'ble High Court of Delhi in pursuance order dated 06.08.2021.
Thus, the liability to pay settlement amount in pursuance of said agreement itself becomes infructuous and not enforceable.
32. The concept of Doctrine of Merger has been propounded by Hon'ble High Supreme Court in case titled as "Kunhayammed v. State of Kerala, (2000) 6 SCC 359, wherein it was held that "Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law". Digitally signed by Seema Seema meena Date:
meena 2024.10.05 16:04:12 CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr +05'30' Page 20 of 22 It is pertinent to mention that in case titled as A.V. Papayya Sastry vs. Govt. of A.P (2007) 4 SCC 22, Hon'ble Supreme Court observed that there are certain cases in which the doctrine of merger will not apply as a matter of course, these include situations where the scope of appeal/revision is narrower than that of the original proceeding, and situations where the power vested in the court designated to hear such appeal/revision is limited; additionally, the doctrine of merger would not apply where the order itself has been secured by means of fraud. Hon'ble Supreme Court has held that "doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal on revision, there is a fusion of merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction."
33. In present case, the Doctrine of Merger is not applicable. As per order dated 23.06.2021, Ld. Sessions Court had given two directions to the accused i.e. to comply with the mediation settlement order and for extension of interim protection. Being aggrieved, the accused filed an application for anticipatory bail before Hon'ble High Court of Delhi. It is to be noted that the accused did not challenge the validity of mediation settlement order executed between the parties before Mediation Centre, Dwarka Courts. Furthermore, the Hon'ble High Court of Delhi has only dealt with the contention of anticipatory bail. The order dated 06.08.2021 Seem Digitally signed by a Seema meena meen Date:
2024.10.05 CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr a 16:04:20 +05'30' Page 21 of 22 clearly shows that the Hon'ble High Court of Delhi did not deal with issue of validity of said agreement. Moreover, Hon'ble High Court of Delhi has also noted that the both parties have entered into mediation settlement agreement, however, the Hon'ble Court had granted the anticipatory bail to the petitioners with directions to retain the FDR of Rs. 55,00,000/- deposited with Ld. Registrar General of Hon'ble High Court of Delhi as condition precedent. Thus, it is established that the amount Rs. 55 Lakhs were not deposited in terms or in pursuance of mediation settlement agreement. Further, the said agreement was duly acknowledged by the accused in Hon'ble High Court of Delhi and the same was not declared as null and void. It is further to be noted that the anticipatory bail was granted in case FIR No.77/2021 U/s 406/420/34 IPC, PS Vikas Puri. It is well settled law that two separate criminal prosecution u/s 420 IPC and 138 NI Act is maintainable. Hence, given the effect of the judgment of Hon'ble Supreme Court, the doctrine of merger is not applicable to the present case. Therefore, the contention of the accused is not tenable in law.
34. The Mediation Settlement has a legal sanctity in the eyes of law. It stands on a much higher pedestal than any other settlement. The reasons are obvious. The mediation settlement takes place according to the settled principles and procedures established by law, which ensures that the settlement takes place amicably and without any kind of force, pressure, coercion or threat of any kind. The terms of mediation settlement are explained to the parties in a vernacular and after understanding the terms and conditions, the parties and their counsels are made to sign the settlement. The process takes Digitally signed by Seema Seema meena place in the presence or supervision of a seasoned Mediator who meena Date:
2024.10.05 16:04:28 +05'30' CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr Page 22 of 22 ensures that the settlement takes place in amicable manner and finally the Mediator signs the settlement after his satisfaction. Therefore, the Mediation settlement order Ex. CW1/2 is valid, enforceable and creates legal liability upon the accused.
35. In view of the above discussion, the defence taken by the accused appears to be only a bare denial and does not measure up to the standard of "preponderance of probability". This Court is of the considered opinion that the complainant has successfully satisfied all the ingredients of offence under section 138 NI Act and the accused has failed to rebut the statutory presumptions raised against him either based on the material available on record or by adducing cogent evidence.
36. Accused Bhupinder Singh is, thus, convicted for the offence under section 138 Negotiable Instrument Act.
37. Let the convict be heard separately on quantum of sentence.
38. Let a copy of this judgment be given to the convict free of cost.
JUDGMENT PRONOUNCED IN THE OPEN COURT ON 05.10.2024. IT IS CERTIFIED THAT THIS JUDGMENT RUNS INTO TWENTY-TWO PAGES AND EACH BEARS UNDERSIGNED SIGNATURE Seema Digitally signed by Seema meena meena Date: 2024.10.05 16:04:37 +05'30' (SEEMA MEENA) JMFC (NI ACT) Digital Court-04 South West, Dwarka Courts, New Delhi CC NO.26195/2021 Vinod Kumar Babuta Vs. Bhupinder Singh & Anr