CRL.M.C./1079/2020 of RAJENDER KUMAR TRIPATHI Vs STATE & ANR.

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 1079/2020,CRL.M.As. 4272-4273/2020RAJENDER KUMAR TRIPATHI..... Petitioner

Through:Mr. Shahid Azad and Ms.MeenuSharma, Advs.

versus

STATE & ANR...... RespondentsThrough:Mr. Kamal Kr. Ghei, Addl. PP forGovt. of NCT Delhi.

CORAM:

HON'BLE MS. JUSTICE SANJEEV NARULA

26.02.2020

CRL.M.C. 1079/2020

1. The present petition filed under Section 482 of Cr. P.C., 1973 impugnsorder dated 18.01.2020 whereby, on an application under Section 437 (5) ofthe Cr. P.C., 1973, the Court has passed the following order:

“CIS no. 3394/19FIR no. 198/17P.S. Daryaganj18.01.2020

Present:Ld. APP for the State.Accused is present with counsel Sh. K. Singh.Complainant is present with counsel Sh. NitinMittal.

Heard on the application U/s 437 (5) Cr. P.C. for

the cancellation of the bail of the accused.Ld. APP for the State submits since the accused hasnot complied with the undertaking/settlement agreements his bail

be cancelled.

Ld. Counsel for accused vehemently opposed the presentapplication by submitting that the account of the accused wasfreezed in case FIR No. 99/17 PS Crime Branch and the accountwas de-freezed by the orders of Ld. CMM South District. It issubmitted that the bank of the accused is not complying thedirections of Ld. CMM and thus the accused is not at fault.Settlement agreement perused. Till date the accused has notmoved any application before Ld. CMM South-East against thebank. As per the settlement the responsibility of making paymentwas upon the accused. Accused is hereby directed to bring theDemand Draft of the entire amount due on next date of hearingto which the counsel for complainant has no objection.

Ld. APP for the State also submits that accused be giventime for submitting the Demand Draft on next date of hearingand if no demand draft be brought by the accused his bail becanceled.

It is hereby made clear to the accused that no exemptionapplication will be entertained on any of the ground whatsoeveron next date of hearing.

Put up on 12.02.2020.”

2. The background of this case is that settlement agreement dated21.06.2019 was executed between the parties whereunder, the applicantsettled the disputes arising out of FIR No.198/2017 by agreeing to makepayment of Rs.36 lacs by way of installment in the manner stipulated in thesaid agreement, the relevant portion whereof extracted hereinabove;

“3. INVOICING AND PAYMENT.

3.1 In order to process payment of the Settlement Amount in aroutine manner, the Party 2 will make the payments against thesettlement amount in the Court of Ld. CMM, Tis Hazari Courts inFIR No.198/2017, Dated 24.08.17 filed at Daryaganj PoliceStation as per the schedule below and upon signing of thisagreement issue to Party 1 as collateral Post Dated Cheque“PDC” of Rs.25,00,000/- (In words: Rupees Twenty-Five lacsonly) from his bank a/c No. 1529002100471730 of Punjab

Signature Not Verified

National Bank, Nehru Place Branch, New Delhi, held in thename of National Housing Development Organization to theParty 1 in the manner referred to herein below:

3. In the said settlement agreement, the parties have also taken note of thefact that the similar FIR No. 99/2017 under Section 420/406 of the IPC,1860 read with Sections 3 & 5 of the Emblem & Names (Prevention ofImproper Use) Act, 1950 at PS Crime Branch, New Delhi was pending andunder the said FIR, assets lying in Bank Account No. 1529002100471730,were in the custody of the Court.

4. Be that as it may, the present petitioner specifically undertook in terms ofClause 3.4 of the settlement agreement, to get the amount released under thecheques issued in favour of the M/s Graphisads Pvt. Ltd., by filing anappropriate application before the Court of Ld. CMM, South East, SaketDistrict Court.

5. Learned counsel for the Petitioner submits that instead of the applicantapproaching the Court, the first party under the settlement agreement (M/sGraphisads Pvt. Ltd.) filed an application seeking release of the amount. Onthe said application, the following orders came to be passed.

“FIR No. 99/2017

PS Crime BranchState Vs. R. K. Tripathi

(Application seeking release of FDR and bank account)

06.08.2019

Present :Dr. Dinesh K. Singh, Ld. APP for the State.

Applicant in person with counsel Sh. KeshavSharma.

This is an application seeking release of FD andbank account No. 1529002100471730 of Punjab National Bank,Nehru Place Branch, New Delhi held in the name of NationalHousing Development Organization.

Heard. Record Perused.

In view of facts and circumstances of the case andthe submissions made by Ld. Counsel for applicant, theapplication in hand is hereby allowed.

Incharge of Punjab National Bank, Nehru PlaceBranch, New Delhi is directed to release FD and bank accountno. 1529002100471730 held in the name of National HousingDevelopment Organization in the account of M/s GraphisadsPvt. Ltd..

Application stands disposed of.

Copy dasti.

(Deepak Sherawat)Chief Metropolitan MagsitrateSED/New Delhi/06.08.2019”

6.Learned counsel for the Petitioner submits that despite aforesaiddirections, Respondent 2 (payee of the cheques) has not presented thecheques in question for encashment and the court ought not have issued thedirections in the impugned order.

7. It is not in dispute that the settlement agreement was indeed executed bythe present petitioner. As result, the Petitioner undertook to make thepayments in terms provided therein. In fact, the order granting bail to thePetitioner dated 21.06.2019, is premised on the fact that the parties havesettled the matter and an amount of Rs.36 lacs has to be paid as per theschedule mentioned in the settlement agreement. The said order which readsas under;

“ID no. 3394/19FIR No. 198/17PS: Daryaganj

21.06.2019Present:Ld. APP for the State.Accused produced from JC.Present:Ld. APP for the State.Accused produced from JC.

Sh. Keshav Sharma and Sh. Harshvardhan, Ld. Counsels for

accused.

Sh. Mukesh Gupta, Managing Director of Graphisads Pvt. Ltd.(Complainant) with Sh. Nitin Mittal, ld. Counsel for complainant.

bail application U/s 437 Cr. PC moved on behalf of accusedis pending disposal.

Submission heard.

It has been submitted by Ld. Defence Counsel that matter hasbeen settled between the parties in sum of Rs.36 lacs to be paid as per the

schedule mentioned in the settlement agreement being filed today (thesettlement agreement has been signed by the parties in the Court and samehas been placed on record). It has been further submitted that in view ofsettlement and the fact that the major offences U/s 420/406/419 IPC arecompoundable in nature, accused may be released on bail.

Ld. Counsel for complainant has also submitted to the sameeffect. He has also submitted that the complainant has received two chequesbearing no. 209998 and 209972 amounting to Rs.25 lacs and Rs.11 lacs.

Ld. APP for the State has opposed the bail.

Considering the above alongwith nature of offence and periodof detention (accused is in JC since 08.01.2019), the bail application standsallowed. Accused is directed to be released on furnishing of P/B in the sumof Rs.25,000/- with one sound surety of like amount. While on bail, theaccused shall abide by following conditions:-

i) he shall not commit any other offence similar to offence in question,

ii) he shall abide by the terms of the settlement agreement filed before theCourt today.

iii) he shall regularly appear before the Court on dates fixed.

Bond furnished. Accepted hereby.

Put up for further proceedings on 06.09.2019.

Let copy of this order be given dasti to both the parties.”

8. In terms of Clause 3.4 of the settlement agreement, it is the Petitioner’sobligation to take appropriate steps to have the amount released in favour ofRespondent 2. Admittedly, the same has not been done. In thesecircumstances, vide the impugned order the learned Magistrate has directedthe Petitioner to bring Demand Draft for the amount of the cheques.

9. Learned APP states that since the accused has failed to comply with thedirections of the court, non-bailable warrants (NBWs) have been issuedagainst the accused vide order dated 12.02.2020.

10. The Petitioner had taken upon himself the obligations to have theamount released in favour of Respondent 2. Today, he has conveniently

sought to take shelter of the fact that since the application for release ofpayment was filed by the complainant, he cannot be held liable to ensurecompliance of the orders passed in the application preferred by Respondent

2. The Petitioner cannot wash off his obligations envisaged in theagreement. The undisputed fact is that the cheques have been drawn on theaccount which is in the name of the Petitioner. The Petitioner as the mandateholder, has to take appropriate steps to get the amount released or to ensurethat if there is any embargo in the operation of the bank account, the same islifted so that the cheques issued under the settlement agreement arehonoured on their due date. The order dated 18.01.2020 merely directs theaccused to bring the amount by way of Demand Draft. For the foregoingreasons, I do not see any reason as to why the directions given by the TrialCourt be interfered with.

11. In these circumstances, I do not find any merit in the present petition.Accordingly, the same is dismissed along with pending applications.

SANJEEV NARULA, J

FEBRUARY 26, 2020

Pallavi