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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 ..... The warrant will only be issued for attachment and not for arrest. In view of the scheme of the CrPC and the observations made in Dayawati (supra), this Court is of the considered opinion that once a compromise has been arrived at and an offence under Section 138 of the NI Act is compounded, the concerned Court, after passing an order compounding the offence can only proceed for attachment in terms of Sections 421 and 431 of the CrPC. Thus, the non-bailable warrants issued were without jurisdiction and therefore, the consequent proceedings under Section 82 of the CrPC were also invalid. This Court is of the opinion that in the present case, no useful purpose will be served by continuing with the proceedings in the subject FIR and it is an appropriate case for quashing the same in order to secure the ends of justice - Petition allowed. - HON'BLE MR. JUSTICE AMIT SHARMA For the Petitioners Through: Mr. Sudhir Nandrajog, Senior Advocate with Mr. Rishi Awasthi, Mr. Piyush Vatra, Mr. Avinash Ankit, Mr. Manan Takkar Ms. Aditi Prakash, Advocates. Petitioner no. 1 in person. For the Respondents Through: Mr. HiteshVali, APP for the State with SI Nitesh Sharma HC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Master data of the accused company reflecting the residential addresses of its directors. viii. On 23.07.2019, the required details were placed on record by respondent no. 2. The learned Metropolitan Magistrate directed fresh non-bailable be issued against the petitioners through the concerned SHO, at the address mentioned in the Master Data. ix. On 16.10.2019, it was again noted that the non-bailable warrants remained unexecuted and fresh non-bailable warrants were issued, to be executed at the address mentioned in the bail bonds. Additionally, notice to surety was also issued through the concerned SHO. x. On 22.11.2019, the learned Metropolitan Magistrate noted that the nonbailable warrants had not been received back. Notice to surety Achla Nand remained unserved and notice to other sureties has not been received back. Considering the said situation, the learned Metropolitan Magistrate issued fresh non-bailable warrants and issued warrants of attachments against the sureties, through concerned SHO. xi. On 23.12.2019, since the non-bailable warrants against the petitioners were still unexecuted, the learned Metropolitan Magistrate issued process under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 07.01.2023, the learned Metropolitan Magistrate compounded the complaint case under Section 138 of the NI Act and acquitted all the accused persons. It was submitted that pursuant thereto, respondent no. 2 has no objection if the present FIR against the petitioners in quashed. Respondent no. 2 has also given an affidavit to that effect, which has been placed on record. 4. Without prejudice to the aforesaid, as far as the merits of the case are concerned, learned Senior Counsel submitted that the learned Metropolitan Magistrate, without issuing a notice/summons to the petitioners for their appearance, mechanically passed the order dated 15.12.2018 for issuance of warrants of attachment. It was further submitted that while issuing summons to the process server who had executed the process under Section 82 of the CrPC, the learned metropolitan Magistrate categorically noted that there was no report regarding the summons issued to the petitioners on earlier occasions. Learned Senior Counsel for the petitioners further drew the attention of this Court to order dated 21.05.2023, whereby the learned Metropolitan Magistrate had directed the concerned SHO to register an FIR a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Heard learned counsel for the parties and perused the record. 9. The offence under Section 138 of the NI Act stood compounded vide order dated 06.08.2018, wherein it has been recorded as under: Matter has been settled between the parties in mediation center. Mediation settlement is taken on record. Same is Ex. C1. Today the complainant has obtained one DD bearing number 609414 dated 11.07.2018 of Rs. 15 lacs and ten PDCs bearing 304315 to 304324 in terms of settlement. Statement of complainant and AR of accused company is recorded to the effect that they have voluntarily settled the matter in mediation center. I am satisfied that complainant and accused no. 1 to 3 have compound the offence U/S 138 NT Act out of their free will without any force or coercion in the Mediation Centre. There is no illegality in the terms and conditions of settlement as mentioned in Ex.CL Therefore, the offence under section u/s 138 NT Act stands compounded U/s. 147 NI Act. It is made clear that if accused failed to make the payment as per schedule mentioned in Ex. C1, the amount of settlement shall be recovered as per provisions of Section 431 Cr.P.C. Reliance can be placed upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender *** *** *** 431. Money ordered to be paid recoverable as a fine. Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures under section 357 , the words and figures or an order for payment of costs under section 359 had been inserted. 12. As per the judgment delivered by a learned Division Bench of this Court in Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032 , once the offence under Section 138 of the NI Act is compounde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defaulter. 121. In the event of either party resiling from the agreed upon settlement which has received the imprimatur of the court, the party attempting to breach the settlement and undertaking cannot be permitted to avoid making the payment. Such party also should not be allowed to violate such undertaking given to the opposite side as well as the court. 122. In (2009) 6 SCC 652, Vijayan v. Sadanandan K., it was held that Section 431 read with Section 421 of the Cr.P.C. is applicable to recovery of compensation ordered under Section 357(5). 123. Section 431 Cr.P.C., also extracted above, provides if any money, other than a fine, is payable by virtue of any order made under the Cr.P.C., the method of recovery whereof is not expressly provided for, shall be recoverable in terms of Section 421 Cr.P.C. 124. In the event that a criminal court passes order accepting the mediated settlement between the parties and directs the accused to make payment in terms thereof, the settlement amount becomes payable under the order of the court. Such order having been passed in proceedings under Section 138 of the NI Act, would be an order under Section 147 of the NI Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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