Page No.# 1/6 GAHC010019902025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./112/2025 M/S NORTH EAST ENGINEERS CONSTRUCTION COMPANY PRIVATE LIMITED AND ANR HAVING ITS REGISTERED OFFICE AT GANESHGURI CHARIALI, G.S. ROAD, HAZARIKA COMPLEX, 6TH FLOOR CROSSING PLAZA, PS DISPUR, GUWAHATI, PIN-781006, KAMRUP METROPOLITAN DISTRICT, ASSAM REPRESENTED BY SRI DHURBA JYOTI HAZARIKA, AUTHORISED PERSON. 2: SRI DHRUBA JYOTI HAZARIKA S/O LATEDHARMA KANTA HAZARIKA EX- DIRECTOR M/S NORTH EAST ENGINEERS CONSTRUCTION COMPANY PVT. LTD. RESIDENT OF HAZARIKA COMPLEX CROSSING PLAZA GANESHGURI CHARIALI PS DISPUR GUWAHATI PIN- 781006 KAMRUP METROPOLITAN DISTRICT ASSA VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PP, ASSAM 2:THE NATIONAL SMALL INDUSTRIES CORPORATION NSIC LIMITED A GOVERNMENT OF INDIA ENTERPRISE NORTH EASTERN REGIONAL OFFICE INDUSTRIAL ESTATE BAMUNIMAIDAM GUWAHATI PIN-78102 Page No.# 2/6 KAMRUP METROPOLITAN DISTRICT ASSAM REPRESENTED BY SENIOR MANAGER OF THE CORPORATION Advocate for the Petitioner : MR. K BHATTACHARJEE, MR. M SAIKIA,MS. A BARMAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 10.02.2025 1. Heard Mr. K. Bhattacharjee, the learned counsel appearing for the petitioners. Also heard Mr. K.K. Das, the learned Additional Public Prosecutor, Assam. 2. This application under section 528 of the BNSS, 2023 praying for quashing of the entire proceedings of C.R. Case No. 3689c/2013, under Section 138 of the NI Act, 1881 pending before the Court of the learned Judicial Magistrate First Class, Kamrup(M), Guwahati. 3. The learned counsel appearing for the petitioners has submitted that the respondent No. 2 had filed a complaint case under Section 138 of the NI Act, 1881 before the Court of the learned Judicial Magistrate First Class, Kamrup(M), in respect of the dishonoured of a cheque issued by the present petitioner amounting to Rs. 72,00,000/- (Rupees Seventy Two Lakhs) only. 4. The learned counsel for the petitioners submits that during the course of the trial of the aforesaid case, as there was a possibility of amicable settlement between the parties, the learned Court of Judicial Magistrate First Class Kamrup(M), referred the same to mediation. Page No.# 3/6 5. It is submitted by the learned counsel for the petitioners that during the course of mediation before District Mediation Centre, Kamrup(M), an amicable settlement was reached at between the parties and it was agreed between the parties that the present petitioners would repay an amount of Rs. 52,50,000/-(Rupees Fifty Two Lakhs Fifty Thousand only) to the complainant in 17 equal instalments. When the said agreement between the parties was reported to the Trial Court by the parties by filing a petition to that effect. 6. It is submitted that no effective order was passed on the said petition instead the compliant case was kept in abeyance. 7. The learned counsel appearing for the petitioners submits that this was a wrong approach adopted by the learned Court of Judicial Magistrate First Class Kamrup(M). He submits that the Court could not have kept the complaint case in abeyance and it ought to have passed an effective order either accepting the agreement arrived at between the parties or to proceed with the trial. 8. The learned counsel appearing for the petitioners submits that the petitioners, in terms of the agreement reached between them and the respondent No. 2 was paying the wrong amount in instalments. However, when there was a default in payment during Covid period, the respondent No. 2 again approached before the learned Court of Judicial Magistrate First Class Kamrup(M) and the C.R. Case No. 3689c/2013 was restored. 9. The learned counsel appearing for the petitioners has submitted that after restoration of the aforesaid complaint case, instead of proceeding with the trial or passing a final order on the settlement reached between the parties, the complaint case was fixed for payment of instalments by the Court, which according to the learned counsel for the petitioners is a wrong approach. As no judicial order was passed on the settlement arrived at between the parties. Page No.# 4/6 10. It is submitted by the learned counsel appearing for the petitioners that the Trial Court could have either accepted the agreement arrived at between the parties or could have proceeded with the trial. However, it fixed the matter only for payment of the instalment amount. 11. The learned counsel appearing for the petitioners has further submitted that the recovery of instalment amount can be directed only in a proceeding under Section 421 of the Code of Criminal Procedure, 1973 and in respect of the said submissions, he has cited a ruling of the Apex Court in the case of “M/s Gimpex Private Limited Vs. Manoj Goel” reported in “2022 11 SCC 705.” 12. The observations made by the Apex Court in the aforesaid case is reproduced herein below:- “41. When a complainant party enters into a compromise agreement with the accused, it may be for a multitude of reasons-higher compensation, faster recovery of money, uncertainty of trial and strength of the complaint, among others. A complainant enters into a settlement with open eyes and undertakes the risk of the accused failing to honour the cheques issued pursuant to the settlement, based on certain benefits that the settlement agreement postulates. Once parties have voluntarily entered into such an agreement and agree to abide by the consequences of non-compliance of the settlement agreement, they cannot be allowed to reverse the effects of the agreement by pursuing Page No.# 5/6 both the original complaint and the subsequent complaint arising from such non-compliance. The settlement agreement subsumes the original complaint. Non-compliance of the terms of the settlement agreement or dishonour of cheques issued subsequent to it, would then give rise to a fresh cause of action attracting liability under Section 138 of the NI Act and other remedies under civil law and criminal law.” 13. The learned counsel appearing for the petitioners has also submitted that by order dated 20.12.2024, the Trial Court has issued non-bailable warrant of arrest against the present petitioners and fixed the matter on 29.05.2025 for appearance/payment. 14. I have considered the submissions made by the learned counsel for the petitioners and have gone through the materials available on record. 15. It appears that, by order dated 23.09.2016, when the settlement between the parties, which was arrived at during mediation, was reported to the Trial Court, it did not pass any effective order on the said settlement agreement, instead the complaint case was kept in abeyance, which in the considered opinion of this Court is a wrong approach. The Trial Court could have either accepted the settlement arrived at between the parties and disposed of the matter or should have proceeded with the trial. There is no provision for keeping the complaint case in abeyance till the repayment is made in terms of the settlement. 16. In view of the above, this Court is of the considered opinion that this matter may be disposed of without issuing notice to the parties. Page No.# 6/6 17. The petitioners are directed to appear before the Trial Court on 29.05.2025, i.e. the date fixed before the said Court, in the C.R. Case No. 3689c/2013. For facilitating their appearance before the Trial Court, the non- bailable warrant of arrest issued against them shall be kept under suspension till that day. 18. On their appearance before the Trial Court, the Trial Court shall consider the settlement arrived at between the parties in the Mediation Centre and pass an effective order thereon or, it may proceed with the trial, whichever way the Trial Court chooses, accordingly to its own wisdom. 19. With the above observations, this criminal petition is disposed of. JUDGE Comparing Assistant