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TMI Blog2023 (11) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Metropolitan Magistrate, South-East, Saket. ii. During the pendency of the proceedings, the inter se dispute between the parties was referred to the Mediation Centre at Saket Courts. Resultantly, the dispute was amicably settled and a settlement agreement dated 19.07.2018 was entered into between the parties. iii. Thereafter, the learned Metropolitan Magistrate, vide order dated 06.08.2018, recorded the terms of the settlement. It was also recorded that respondent no. 2 was in receipt of a demand draft for a sum of Rs. 15,00,000/- and 10 PCDs. The learned Metropolitan Magistrate compounded the complaint in accordance with Section 147 of the NI Act, in terms of the settlement arrived at between the parties. iv. On 15.12.2018, respondent no. 2 moved an application under Sections 421/431 of the CrPC before the learned Metropolitan Magistrate stating the petitioner no. 1 did not comply with the terms of the settlement agreement. In view thereof, the learned Metropolitan magistrate passed orders for issuance of warrants of attachment under Section 421 of the CrPC in order to realize the settlement amount. v. On 02.02.2019, the learned Metropolitan Magistrate directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate noted that process under Section 82 of the CrPC had already been executed against the petitioners and even after passage of thirty days thereafter, they have not appeared. The petitioners were accordingly declared absconders. Accordingly, the concerned SHO was directed to file a status report regarding the apprehension of the petitioners and was also directed to register an FIR against then under relevant provisions. xvii. On 29.06.2022, an was application moved on behalf of the petitioners seeking cancellation of proceedings under Section 82 of the CrPC. The learned Metropolitan Magistrate observed that since the petitioners had already been declared absconders and an FIR has been ordered to be registered, the application was not maintainable. Accordingly, the said application was dismissed. On the said date, a status report was also placed on record stating that the petitioners had not been apprehended and FIR had also not been registered till date. Accordingly, the SHO was directed to comply with order dated 21.05.2022, forthwith. xviii. A revision petition against order dated 29.06.2022 dismissing the application for cancellation of proceedings under Section 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of NCT of Delhi and Anr. & Anr., 2021:DHC:913. v. Rajesh Ebrahimkutty Majidhabeevi v. State (Govt. of NCT of Delhi) and Ors., MANU/DE/2670/2021. vi. Davindra Mahajan v. State of Haryana, MANU/PH/0876/2022. vii. Vikas Gupta v. State of Haryana and Others, Order dated 01.08.2018 passed by a learned Single Judge of the Hon'ble High Court of Punjab and Haryana in CRM-M-19636-2018. 6. Respondent no. 2 was present in person on a previous date of hearing, i.e., on 18.04.2023 and submitted that he does not dispute the fact that the complaint under Section 138 of the NI Act instituted on his behalf has been compounded and the petitioners have accordingly been acquitted. It was further submitted that he has no objection to quashing of the present FIR. 7. Learned APP for the State submitted that during the course of investigation in the present FIR, efforts were made to apprehend the petitioners at their given address at A-12, Sector 24, NOIDA, Uttar Pradesh but no clue was found and the petitioners have not been apprehended till date. It was submitted that as per report of the State Crime Record Bureau, the petitioners herein have no previous involvements. It was submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 47 lacs till 31.01.2019 as per settlement Ex..C1, on filing of PF within seven days. Complainant is' directed to file the list of immovable and movable properties of Sanjeev Srivastava alongwith PF. Put up On 27.04.2019" 11. At this stage, it is relevant to note, that Sections 421 and 431 of the CrPC provides as under: "421. Warrant for levy of fine.-(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of the offender." 13. In view of the aforesaid provisions, the learned Metropolitan Magistrate could not have issued non-bailable warrants on 27.04.2019. It is pertinent to note that pursuant to the non-execution of the non-bailable warrants, process under Section 82 of the CrPC was executed and the petitioners were declared absconders. In Dayawati (supra), it was held as under: "XIV. Breach of such settlement accepted by the court - consequences? 118. The instant reference has resulted because of the failure of the court to have recorded the settlement and undertakings binding the accused person in the complaint under Section 138 of the NI Act to abide by the settlement arrived at during mediation. There can be no manner of doubt that once a settlement is reported to the court and made the basis of seeking the court's indulgence, the parties ought not to be able to resile from such a position. So what is the remedy available to a complainant if the respondent commits breach of the mediation settlement and defaults in making the agreed payments? 119. Let us examine as to whether the legislature has provided any mechanism in the Cr.P.C. for recovery of monetary amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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