Gaurav Jain vs Ashok Jain on 11 November, 2019

Delhi District Court

Gaurav Jain vs Ashok Jain on 11 November, 2019
IN THE COURT OF SH. AJAY GUPTA,
ADDITIONAL SESSIONS JUDGE−02 (EAST),
KARKARDOOMA COURTS, DELHI

Criminal Revision No.258/2019

Gaurav Jain
s/o Sh. R.K.Jain
R/o F−5/3, Third floor
Krishna Nagar,
Delhi−110051 ......Revisionist

Versus

Ashok Jain
r/o 10/367, Lalita park
Laxmi Nagar
Delhi
......Respondent
Date of Institution: 17.10.2019
Reserved for Order on: 31.10.2019
Order pronounced on: 11.11.2019

ORDER

1. The present revision petition has been directed against the order dated 19.07.2019 passed by Ld.
MM in case CC No. 57404/2016 whereby the offence was compounded subject to payment of cost of
10% (Rs.40,000/−).

2. The facts in brief for giving rise to this revision petition are that respondent had filed a complaint
u/s 138 NI Act against the Crl.Rev.No.258/2019 Gaurav Jain VS. Ashok Jain Page no. 1 of 6
revisionist alleging that in Feb.2015, accused/revisionist approached the complainant for friendly
loan of Rs.16,50,000/− on interest and the said amount was arranged and paid by the respondent to
the revisionist through cash/cheques during February to March against the promissory notes and
post dated cheques executed by the accused in favour of the complainant/respondent. It was alleged
that against part amount of Rs.4.00 Lacs, accused executed promissory note and receipts in favour
of the complainant and also issued post dated cheque no.046561 for Rs.4.00 Lacs.
Complainant/respondent deposited the said cheque in his bank account but the said cheque was
returned unpaid by the bank with remarks "insufficient funds". Complainant informed the
revisionist/accused about the dishonour of cheque and requested for payment but
accused/revisionist failed to pay the same. Complainant/respondent sent a legal notice on
04.04.2016 through its lawyer but accused has failed to pay the said amount. Hence, complaint u/s
138 NI Act was filed. Accused/revisionist was summoned and notice u/s 138 NI Act was framed
against him. Accused/revisionist moved an application u/s 145(2) NI which was dismissed.
Statement of accused u/s 313 Cr.P.C was recorded. Accused examined Gaurav Kumar Jain as DW1.

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 Gaurav Jain vs Ashok Jain on 11 November, 2019

Thereafter, the matter was amicably settled between the parties and on 19.07.2019, they made
statements with regard to settlements. Vide order dated 19.07.2019, the offence was compounded by
the Ld. MM subject to cost of 10% of the cheque Crl.Rev.No.258/2019 Gaurav Jain VS. Ashok Jain
Page no. 2 of 6 amount which was to be deposited by the accused in DLSA. Feeling aggrieved by the
said order, revisionist preferred the present revision petition.

3. Trial Court record was summoned and the matter was fixed for arguments. I have heard the Ld.
Counsel for the revisionist as well as the Ld. Counsel for the respondent.

4. Ld. Counsel for the revisionist argued that several litigations were going on between the
revisionist and the respondent and that the same were settled by the parties and civil suits were
withdrawn. However, when the request to withdraw the present complaint u/s 138 NI Act was
made, Ld. MM refused to consider the request of withdrawal and directed for compounding of the
offence. It was argued that the parties had settled the dispute outside the Court and thus, made
request for withdrawal of complaint u/s 138 NI Act. It was stated that case Damodar S. Prabhu Vs.
Sayed Baba Lal is not applicable to the present case as no application for compounding was filed and
that the mediation had not arisen out of the criminal case amongst the parties. It was stated that the
mediation settlement had arisen out of the civil suits and not out of the criminal complaint case. It
was further submitted that the revisionist is in financial crisis and that he is paying the amount of
the complainant/respondent by arranging the same on interest. His Crl.Rev.No.258/2019 Gaurav
Jain VS. Ashok Jain Page no. 3 of 6 business has completely vanished and that nowadays, he is
living hand to mouth. Request has been made for waiving off the cost of Rs.40,000/−.

5. On the other hand, Ld. Counsels for the respondent submits that he has no objection if the
compounding cost is waived.

6. In consideration of the arguments advanced by the Ld. Counsel for the revisionist as well as Ld.
Counsel for the respondent, I have perused the record. Order dated 29.04.2019, passed by the
Mediation Centre reveals that both the parties have settled their all the disputes through mediation
settlement. It is mentioned in the order that "It is agreed between the parties that the defendant
shall pay a total sum of Rs.8,00,000/− to the plaintiff as full and final settlement of the present four
suits as well as the above mentioned two suits and case u/s 138 NI Act". It is also mentioned that "it
has been further agreed between the parties that the plaintiff/complainant shall withdraw his two
suits and case u/s 138 of NI Act from the concerned courts on the dates already fixed there".

7. In Civil Appeal No. 8614/14, titled as Madhya Pradesh State Legal Service Authority Vs. Prateek
Jain and Anrs., Hon'ble Supreme court has observed that the cost of Crl.Rev.No.258/2019 Gaurav
Jain VS. Ashok Jain Page no. 4 of 6 compounding u/s 138 NI Act can be waived in case the matter
has been settled in Lok Adalat or in other appropriate case the Court can reduce the cost by
imposing minimal cost or can waive the cost also. In Crl.Appeal No.1214−1215/2019 titled Rajendra
Vs. Nand Lal, Hon'ble Supreme Court has observed that cost for compounding u/s 138 NI Act may
be waived off in appropriate cases. Record reveals that the matter was settled with the joint efforts of
the parties. The matter has been sorted out in the Mediation Cell by the parties. On the day when
revision petition was received by this court, it was submitted that the accused/revisionist had

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 Gaurav Jain vs Ashok Jain on 11 November, 2019

himself made efforts to settle the amount and that he is not in good financial condition. It was also
submitted that if the cost is not waived off, he would not be able to pay the amount as promised in
the settlement. The revisionist is in financial crunch. Somehow, he is managing to pay the
outstanding amount to the complainant/respondent. Considering the facts and circumstances of the
case and since the matter was settled before Mediation Cell and the offence already stood
compounded by Ld.MM, thus, complaint filed by the complainant/respondent is disposed off as
compounded and the cost of 10% i.e. Rs.40,000/− imposed by the Ld. Trial Court stands waived off.
The order dated 19.07.2019 is modified to this extent only. Revision petition stands disposed off
accordingly.

8. TCR be sent back with the copy of this order and Crl.Rev.No.258/2019 Gaurav Jain VS. Ashok
Jain Page no. 5 of 6 revision file be consigned to record room.

Announced in the open

Digitally signed by
AJAY AJAY GUPTA
Location:
Karkardooma Court

court on 11.11.2019 GUPTA Date: 2019.11.11

16:07:30 +0530

(AJAY GUPTA)
Addl. Sessions Judge−02(East)
KKD COURTS, DELHI

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