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S N Bansal & Anr vs Nct Of Delhi & Ors on 1 March, 2017

IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: March 01, 2017
CRL.M.C. 790/2012 and Crl. M.A. No. 2765/2012 (Stay)

S N BANSAL ANR ….. Petitioners
Represented by: Mr. Dinesh Priani, Advocate
with petitioner No.2 in person.
versus

NCT OF DELHI ORS ….. Respondents
Represented by: Mr. Ravi Nayak, APP for the
State with SI Pawan, EOW.
Respondent No.2 in person
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. Amended memo of parties is taken on record.

2. By the present petition the two petitioners S.N. Bansal and G.J.
Varadarajan seek quashing of FIR No. 1111/1998 under Sections
420
/467/468/471 IPC registered at PS Kalkaji, Delhi and the proceedings
pursuant thereto on the ground that the parties have settled the matter.

3. A perusal of the record would reveal that the respondent No.2 Rakesh
Kapoor filed a complaint under Section 138 of the Negotiable Instruments
Act, 1881 (in short the ‘NI Act’) wherein S.N. Bansal, petitioner No.1 was
convicted. The conviction was upheld by this Court and S.N. Bansal
thereafter approached the Hon’ble Supreme Court by filing special leave
petition being SLP (Crl.) No.5036/2004. The SLP was dismissed by the
Hon’ble Supreme Court on 15th October, 2004. After the SLP (Crl.)
No.5036/2004 was dismissed by the Hon’ble Supreme Court, the parties

CRL.M.C. 790/2012 Page 1 of 8
entered into a settlement whereafter another special leave petition being SLP
(Crl.) No.331/2005 was filed before the Hon’ble Supreme Court. A joint
memo of compromise between the respondent No.2/complainant Rakesh
Kapoor and S.N. Bansal was entered into duly signed by Rakesh Kapoor and
S.N. Bansal which was placed on record before the Hon’ble Supreme Court.

4. Contents of joint memo of compromise filed on 31st January, 2005
before the Hon’ble Supreme Court are as under:

“IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITON (CRL.) NO.331 OF 2005

IN THE MATTER OF:

     Rakesh Kapoor                                 Petitioner/
                                                   Complainant
                                  Versus
     S.N. Bansal  Anr.                            Respondents/
                                                   Accused

     JOINT MEMO OF COMPROMISE BETWEEN THE

COMPLAINANT RAKESH KAPOOR AND THE ACCUSED S.N.
BANSAL PURSUANT TO THE DIRECTIONS OF THE
HON’BLE SUPREME COURT BY ORDER DATED 28.1.2005.

1. That the complainant Rakesh Kapoor and the accused
S.N. Bansal have arrived at a settlement whereby the accused
S.N. Bansal has paid certain amount and also a post-dated
cheque to the complainant Rakesh Kapoor which was reported to
the Hon’ble Supreme Court at the time of hearing of the Special
Leave Petition on 28.1.2005. The parties made a joint prayer for
permission to compound the offence for which the accused has
been convicted under Section 138 read with Section 142 of the
Negotiable Instrument Act. The Hon’ble Court directed the
parties to file a joint Memo of Compromise supported by the

CRL.M.C. 790/2012 Page 2 of 8
affidavits of both the parties. Hence this Joint Memo of
Compromise.

2. That the Complainant Rakesh Kapoor has received a
certain amount and also a post-dated cheque for ₹7 lakhs from
the accused S.N. Bansal towards the full and final settlement of
all his claims against S.N. Bansal.

3. That no amount is due from S.N. Bansal and the
Complainant is willing to compound the offence of which S.N.
Bansal has been convicted by the Court of Addl. Sessions Judge
by judgment dated 25.10.2002 which was confirmed by this
Hon’ble Court by the dismissal of Special Leave Petition
(Criminal) No. 5036 of 2004 on 15.10.2004.

4. That the accused S.N. Bansal, in addition to the amounts
already paid to the Complainant has issued a post -dated cheque
bearing the date 1.9.2005 for an amount of ₹7 lakhs in favour of
the Complainant towards the said full and final settlement.

5. That the accused S.N. Bansal solemnly undertake to this
Hon’ble Court that the said post-dated cheque of ₹7 lakhs shall
be honoured on its due date.

6. That the Complainant has no objection in receiving the
balance amount by the said post dated cheque of ₹7 lakhs, in view
of the undertaking of the accused to this Hon’ble Court.

7. That there are no criminal or civil cases instituted by
Rakesh Kapoor pending before any court and if any such case is
brought to the notice of Rakesh Kapoor, the same shall be
withdrawn by making an appropriate application before the
concerned Court.

8. That in view of the amicable settlement between Rakesh
Kapoor and S.N. Bansal, both parties are making a joint prayer
before this Hon’ble Court to permit them to compound the
offence of which S.N. Bansal has been convicted by judgment
dated 25.10.2002 and confirmed by this Hon’ble Court by the
dismissal of Special Leave Petition (Crl.) No.5036 of 2004 on
15.10.2004.

9. Both the parties have set down their hand on this
document on this the 31st day of January, 2005 at New Delhi.
Both the parties have also filed their respective affidavits in
support of this Memo of Compromise.

CRL.M.C. 790/2012 Page 3 of 8

      Sd/- RAKESH KAPOOR                             SD/- S.N. BANSAL
     COMPLAINANT                                    ACCUSED

     Filed on:   31.1.2005
     New Delhi."

5. In lieu of the claim of the respondent No. 2, the complaint was lodged
for two cheque as according to Rakesh Kapoor one cheque was lost from the
office of his counsel. The amount of the two cheques dishonoured was
approximately ₹1.50 crores as against which a settlement was arrived for a
sum of ₹45 lakhs between the parties which was handed over through
different cheques and drafts which Rakesh Kapoor acknowledges having
received the same.

6. Rakesh Kapoor, respondent No.2 also filed a complaint to the
Commissioner of Police on which FIR No. 1111/1998 under Sections
420
/467/468/471 IPC was registered at PS Kalkaji, Delhi investigation
whereof was later transferred to the Economic Offences Wing of the Delhi
Police. Charge sheet has since been filed in the said FIR and by the present
petition the petitioners seek quashing of the same as parties have entered into
a settlement. Despite service respondent No.2 was not appearing and thus,
the SHO concerned was directed to ensure the presence of respondent No.2
in Court today.

7. Rakesh Kapoor, who is present in Court and is identified by the
Investigating Officer, does not deny that a settlement was arrived at between
the parties and that he had signed the joint memo of compromise between the
parties as noted above before the Hon’ble Supreme Court. He further states
that at that time the settlement so arrived at between the respondent No. 2

CRL.M.C. 790/2012 Page 4 of 8
and the petitioner, was by duress on the respondent No.2. This Court asked
Rakesh Kapoor as to under whose duress he entered into the settlement to
which he replied that it was neither of the Court nor of the petitioner but
because he had taken various loans, the creditors were troubling him and he
was in dire need of money for which he sold his various properties as well,
thus faced with these circumstances, he was compelled to settle the matter
with the petitioners.

8. Thus the respondent No.2 compelled by his circumstances settled the
matter and not under duress either from the petitioners or from the Court.
On a query put to Mr.Rakesh Kapoor as to whether he was ready to restore
the petitioners to status quo ante by refunding the amount received with
interest thereon, he states that he is not in a position to restore the amount.

9. The Supreme Court in the decision reported as 2005 (3) SCC 302
Mohd. Shamim Ors. vs. Nahid Begum (Smt.) Anr. dealing with quashing
of a FIR registered under Sections 406/498A/34 IPC observed that the
settlement was arrived at between the parties before and on the intervention
of the Additional Sessions Judge and as against total amount of ₹2.75 lakhs
payable to the respondent therein ₹2.25 lakhs had been paid and the balance
amount of ₹50,000/- was to be paid at the time of quashing of the FIR when
the respondent therein filed objections to the application seeking quashing of
FIR contending that the affidavit was got signed from her by
misrepresentation of facts. The Supreme Court held that the denial of the
execution of the deed of settlement was an afterthought and cannot be
accepted in view of the fact that the settlement was arrived at the
intervention of the judicial officer of the rank of Additional Sessions Judge
and ex-facie the settlement appears to be genuine. The Supreme Court

CRL.M.C. 790/2012 Page 5 of 8
further held that the continuance of the criminal proceedings against the
appellant therein would be an abuse of the process of the Court and
exercising its plenary jurisdiction under Article 142 of the Constitution of
India, it quashed the FIR in question.

10. This Court in the decision reported as 2007 SCC OnLine Del
518:(2007) 142 DLT 141 Jaibir v. State observed that once the parties have
settled their disputes and have arrived a settlement, the same should be given
effect in entirety and should be treated as a solemn settlement. The relevant
extract of the report is as under:

“9. Reverting to the case at hand, it is clear from the
settlement that the parties had agreed to bury all their
differences. The complainant was also facing criminal
proceedings under Sections 498A/406/34, IPC and also under
Section 125, Cr.P.C. He has been the beneficiary of the
settlement inasmuch as the proceedings under Section 125,
Cr.P.C. are withdrawn by Sarita and proceedings under
Sections 498A/406/34, IPC are also quashed in view of the
cooperation of Sarita. This being a complete package, the
complainant cannot turn around and oppose the petition after
he agreed for quashing of these proceedings at the time of
mediation proceedings. There is another aspect which needs to
be emphasized. The settlement was arrived at during mediation
proceedings. The Legislature has amended Section 89 of the
Code of Civil Procedure in the year 2002. There is an all
round attempt by the Legislature and Judiciary, as well as the
Executive, to promote the settlement of disputes through the
process of Mediation. Therefore, once disputes between the
parties have been settled by the process of mediation, it would
be in the public interest as well to attach importance to such a
process and treat the settlement as a solemn settlement.
Otherwise, the movement of mediation may itself suffer if the
parties are given to understand that even after they agree for
settlement, one of the parties can still back out.

CRL.M.C. 790/2012 Page 6 of 8

11. Similar view was taken by this Court in the decision reported as 2012
SCC OnLine Del 5967 Anshu Soni Ors v. State Anr. wherein it was
held:

6. After having settled the matter through the process of
mediation, which has even been acted upon partially, parties
cannot be permitted to back track from the same as it will
negate the aims and objectives of whole process of mediation.
Withdrawal of consent by respondent no. 2 on some innocuous
ground is impermissible. In Ruchi Aggarwal v. Amit Kumar
Agrawal
2005 (1) ALT 42 (SC), civil and criminal litigations
were pending between the husband and wife. Matter was
compromised before the Family Court pursuant whereof, a
decree of divorce by mutual consent was granted. Wife
withdrew application filed by her under Section 125 Cr.P.C. in
terms of the settlement, however, she avoided to withdraw the
complaint under Sections 498-A/328/506 IPC and Sections 3
and 4 of the Dowry Prohibition Act, 1961. Accordingly,
husband filed a petition before the High Court of Uttaranchal
for quashing of the said complaint. In the said petition, High
Court quashed the charge-sheet and the summoning order for
want of territorial jurisdiction and transferred the
investigations to the concerned Police Station. Wife preferred
an appeal before the Supreme Court wherein criminal
proceedings were quashed keeping in mind the settlement
arrived at between the parties despite opposition of the wife.

12. Mr. Rakesh Kapoor who is present in Court, states that he cannot
return back the money. Thus the respondent No.2 having taken the benefit
of the settlement, the other terms of the settlement, arrived at between the
parties, are also required to be complied with. Since one of the terms of the
settlement arrived at between the parties i.e. clause 7 notes that there was no
criminal or civil cases instituted by Rakesh Kapoor pending before any
Court and if any such case is brought to the notice of Rakesh Kapoor, the

CRL.M.C. 790/2012 Page 7 of 8
same shall be withdrawn by making an appropriate application before the
concerned court and that on the same set of allegations for which the above
noted FIR was registered and a complaint case under Section 138 NI Act is
filed, the charge sheet has been filed, the same is liable to be quashed in view
of the settlement arrived at between the parties and the respondent No.2
having taken the benefit of the settlement.

13. Consequently, FIR No. 1111/1998 under Sections 420/467/468/471
IPC registered at PS Kalkaji, Delhi and the proceedings pursuant thereto are
hereby quashed.

14. Petition and application are disposed of.

15. Order dasti.

(MUKTA GUPTA)
JUDGE
MARCH 01, 2017
‘vn’

CRL.M.C. 790/2012 Page 8 of 8

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