JUDGMENT Manju Goel, J.
1. Petitioner is one of the accused in criminal complaint No. 139/1995 titled H.P.S. Chawla v. Raj Mehta and Ors. U/s 147/148/323/506 IPC r/w Section 120 IPC filed by the respondent. On the same incident, the petitioner lodged an FIR being No. 292/1994 dated 25.9.1994 u/s 354/34 IPC. It appears that before the incident over which the FIR No. 292/1994 and the complaint case No. 139/1995 were filed there were certain disputes between the parties. Criminal complaints u/s 138 of Negotiable Instruments Act were filed by the petitioner, Director of M/s Evita Foods (P) Ltd. against the respondent, Director of M/s Earl Chawla & Co.(P) Ltd. They had been doing a business under a memorandum of understanding dated 18.3.1994. Over their business deals some civil proceedings were also pending. Out of one such civil proceedings, an appeal being No. FAO 333/1996 was preferred before this Court by M/s Earl Chawla & Co.(P) Ltd. On 5.8.1998 parties to the FAO No. 333/1996 submitted before this Court that the parties were ready and willing to refer to their pending disputes to their arbitrator. The order passed on 5.8.1998 which shows the position as it stood before the Court is as under:-
"05-08-98 Present: Ms. Sangeeta Jain for appellant. Mr. Chetan Sharma for respondent." F.A.O. No. 333/96 & C.M. No. 3750/96
The learned counsel for parties on specific instructions state that they are ready and willing to refer all the pending disputes to an Arbitrator including the ones which are the subject matter of criminal proceedings. They shall prepare a list of disputes and submit the same before the court on the next date so that a composite order can be passed for referring the same to an Arbitrator who may be acceptable to both the parties.
List for further directions on September 4, 1998. The file of Suit No. 1166/95 be also sent to court on that date.
August 05, 1998 C.M. Nayar, J. H. Soni"
2. Following this order a list of cases which were pending inter se between the parties were filed by the appellant, namely, M/s Earl Chawla & Co.(P) Ltd. while the counsel for the respondents namely M/s Evita Foods (P) Ltd. and another filed a list of referable disputes. By an order dated 4.9.1998, appellant was also directed to file a list of referable disputes. It appears that the FAO 333/1996 was finally disposed of by an order dated 4.3.1999. The order of 4.3.1999 is reproduced below:-
"04-03-1999: Ms. Sangeeta Jain for the appellant. Mr. Chetan Sharma for the respondents. FAO 333/96 and CM 685/99
The parties have mutually agreed to refer the matter for adjudication by arbitration. With the consent of the parties, I appoint Justice Jaspal Singh, retired Judge of this court, as Arbitrator to adjudicate upon all the disputes inter se between the parties. List of disputes as filed in this court by the petitioner dated 16th November, 1998 is referred for the adjudication of the Arbitrator.
Mr.Sharma says that some of the disputes are no disputes. The questions of disputes shall also be decided by the Arbitrator. Similarly the disputes raised by the respondents vide list filed on 25th August, 1998 are also referred for adjudication to the Arbitrator.
Let all the pending cases between the parties as per the list filed by the petitioner and by the respondent, counsel for the parties state, shall be withdrawn in view of the order of reference for arbitration. Mr. Chetan Sharma says that with regard to the withdrawal of the criminal complaints under section 138 of the negotiable instruments Act as well as under section 354 of the IPC, necessary statements shall be made by the person concerned to withdraw the same and have the same compounded.
Mr. Vishwant Kumar, respondent No. 2, as well as husband of the director of the respondent says that he will pursuade Ms. Raj Mehta, who has filed the complaints for withdrawal of the complaints.
The Arbitrator shall fix his own fee. The appeal stands disposed of in terms of the order of reference.
March 04,1999 Sd/- `SCS' Vijender Jain, J."3. The fact important for the purpose of the present petition which seeks quashment of the complaint filed by the respondent is that in the list of cases filed by M/s Earl Chawla & Co.(P) Ltd., the complaint case No. 139/95 was not included. Subsequently when the order dated 4.3.1999 was passed when the criminal complaint u/s 138 of the Negotiable Instruments Act and the FIR u/s 354 IPC were offered to be withdrawn no mention was made by any of the two parties about the criminal complaint No. 139/95. This omission came up for consideration before this Court in CM No. 554/2002 and FAO 333/1996 when M/s Evita Foods (P) Ltd., the respondent in the FAO applied for a direction to the appellant therein to withdraw the complaint u/s 506/323/34/147/148/120 of the Indian Penal Code. The court considering the previous proceedings passed following order dated 7.11.2003 which is quoted below:-
"07-11-2003 Present: Ms. Sangeeta Jain for the appellant. Mr. Chetan Sharma, Senior Advocate with Mr. S.K. Tiwari for the respondent. CM 554/2002 in FAO 333/96
This is an application filed by the respondent for direction to the non-applicant/appellant to withdraw the complaint filed under Sections 506, 323, 34, 147, 148, 120B IPC, Police Station Vasant Vihar, New Delhi, which is a private complaint filed by the Shri H.P.S. Chawla, Director of the appellant company. It is contended before me that in view of the overall settlement of the disputes as reflected in the order passed by this Court on 4.3.1999, this complaint ought to have been withdrawn by the appellant. I have perused through the order dated 4.3.1999. On 4.3.1999, the Court had directed that the parties have agreed to refer the matter for adjudication by arbitration. The Court has further directed that the pending cases between the parties as per the list filed by the parties shall be withdrawn in view of the order of reference for arbitration. It was for that reason all the pending matters including the criminal complaints under Section 138 of the Negotiable Instruments Act, as well as under Section 354 of the IPC was withdrawn by the respondent. The respondent has also withdrawn the complaint which was filed by Ms.Raj Rani Mehta, Director of respondent company on which an FIR was registered. She was also directed to make statement for withdrawal of the complaint. Strictly speaking it was for the counsel to have brought out on 4.3.1999 that another matters between the parties were pending as detailed above. However, that was not done. Therefore, the complaint filed by H.P.S. Chawla was not a subject matter of the order. However, keeping in view of the order passed on 4.3.1999 and the spirit of that order, the parties were to withdraw all the pending litigation. It is up to the court concerned in which the criminal complaint is pending to deal with the matter in the light of the order passed on 4.3.1999 in accordance with law.
Application stands disposed of.
November 07, 2003 Sd/- SA Vijender Jain, J."
4. In the present petition, petitioner Raj Mehta seeks quashment of the criminal complaint No. 135/95 on the ground that the respondent cannot proceed with the complaint in view of what has been stated herein before namely reference of all disputes to arbitration and the undertaking given by both parties to the court on 5.8.1998.
5. As can be seen from the facts narrated above, the complaint case was not included in the list of pending cases. Nor was this listed as one of the referable disputes. Accordingly, the arbitration never got jurisdiction over the complaint and there was no occasion for the complaint to be adjudicated by the arbitrator. At the same time, the complaint having invoked the jurisdiction of a Metropolitan Magistrate in respect of some criminal offences could not form part of any arbitration proceedings. Being conscious of the fact that a criminal case cannot form part of an arbitration agreement, the petitioner had withdrawn the criminal complaint u/s 138 of the Negotiable Instruments Act as well as her complaint u/s 354 IPC on which an FIR was registered. Technically speaking, the respondent never withdrew the complaint case as the same was not included either in the list of referable disputes or in the list of pending cases and the same was not withdrawn despite the withdrawal of the criminal complaints u/s 138 of the Negotiable Instruments Act and the FIR u/s 354 IPC. Yet the order dated 5.8.98 clearly shows that the FAO No. 333/1996 and all disputes between the parties were put on the route of alternative dispute resolution on account of the statement of the counsel for both parties on specific instructions that they were ready and willing to refer all pending disputes to an arbitrator including the ones which are subject matter of criminal proceedings. This assurance given by the counsel for M/s Earl Chawla & Co.(P) Ltd. should not be overlooked because the other party namely the petitioner relied upon this statement and accepted the course of alternative dispute resolution.
6. Another technical point argued before this Court is that the respondent was not, in his individual capacity, a party in the FAO 333/1996. This fact is as much true for the petitioner as the petitioner Raj Mehta was not party in her individual capacity in FAO No. 333/1996. The parties nonetheless did not look at the things in such technical perspective. The petitioner herein, pursuant to the undertaking given to the Court withdrew her complaint u/s 354 IPC. It may be mentioned here that no other motive for withdrawing the complaint/FIR u/s 354 IPC is alleged by the respondent. On the other hand, the respondent himself was the person who filed the appeal namely FAO 333/1996 as Director of M/s Earl Chawla & Co.(P) Ltd. The dispute over which the criminal complaint was filed by the respondent also had its nexus in the civil disputes because apparently the civil disputes created an enmity leading to the incident of violence. In fact the complaint, copy of which has been placed on the record, gives an elaborate recapitulation of the civil dispute between the parties that existed at the time when the incident of 25.9.94 took place. It is therefore clear that the assurance given by the parties' counsel on 5.8.98 was not only in respect of the disputes strictly between two companies or two commercial undertakings but also between the individuals, who were the directors of the two companies. In this situation, it is an abuse on the process of court for the respondent to say that at no point of time he withdrew his complaint and therefore despite the fact that all pending disputes have been referred to arbitration in the manner as described above, the respondent can still pursue his criminal complaint. The tradition of this Court has been to rely upon the statements given by the counsel at the bar. They are not always called upon to file their statements given on behalf of the parties in the form of an application or an affidavit. Particularly when the parties are in a mood to have their disputes taken out of the court for settlement through arbitration or other modes of ADR, the formality of the court proceedings get further relaxed. The spirit in which the order dated 5.8.1998 was made clearly indicates that parties, namely the two companies as well as its directors, actually intended to settle their disputes otherwise than through rigors of the court procedure, the counsel assure the court that there assurance was being given 'on instructions'. Accordingly, the case was posted to the next date directing the parties to file the list of the pending disputes or cases. The respondent did not include the criminal complaint in any of the two lists which, somehow went unnoticed by the counsel as well as by the court. If the respondent at that time did not intend to include the criminal complaint amongst the cases to be decided by any ADR method he, in all fairness, should have brought this to the notice of the petitioner and to the court and should have warned the petitioner that the petitioner who proceeded to arbitration could do so on her own peril with the criminal case against her still pending and pursued by the respondent.
7. In my opinion, the respondent remained silent all through leading the petitioner to believe that the respondent would withdraw his criminal complaint. It would be a glaring example of the abuse of the process of court, if he is now allowed to pursue the same. In my opinion, it is a fit case in which power u/s 482 Cr.P.C. should be used for quashing the complaint.
8. In Satish Gathwal and Ors. v. State and Anr. 1998 (2) JCC (Delhi) 114, this court quashed a criminal proceedings u/s 498A IPC on the ground that the wife had confirmed a settlement between the parties by giving her statement in the divorce proceedings and if she subsequently backs out from the settlement in withdrawing the criminal proceedings it will be abuse of the process of the court.
9. In Mohd. Shamim and Ors. v. Smt. Nahid Begum and Anr. 2005 I AD (SC) 632, a wife after receiving Rs,2,25,000/- towards a settlement with the husband and inter alia agreeing to consent to quashment of the criminal proceedings u/s 498A & 406 IPC subsequently pleadings that she was not aware of the contents of the agreement, In the facts of that case the Supreme Court the denial was an after thought and that continuance of the Criminal proceedings was an abuse of the process of the court.
10. Following the two authorities, I find that the petition deserves to be allowed. The petition is allowed and the criminal complaint No. 139/1995 titled H.P.S. Chawla v. Raj Mehta and Ors. is quashed.