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TMI Blog2014 (7) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter was settled for an amount of ` 4,50,000/- and six months' time was granted for payment of the amount to the accused and in default, complainant was allowed to proceed with the case and if amount was paid, then complainant has to withdraw the case. The mediation agreement was signed by the parties on 17.2.2014, but now the learned Magistrate is insisting the petitioner who is the complainant to adduce evidence before expiry of the period mentioned in the agreement. So the petitioner has no other remedy except to approach this court seeking the following relief: "to direct the learned Judicial First Class Magistrate II, Kollam to adjourn C.C. 4202/2009 for 6 months to facilitate the condition in the mediation proceedings in the interest of justice". 2. Heard the counsel for the petitioner, counsel for the first respondent and also the learned Public Prosecutor. 3. The counsel for the petitioner submitted that he is even prepared to wait for six months as provided in the agreement, if the respondent is prepared to pay the amount But so far though five months have already lapsed, no amount has been paid. Even then, he is prepared to wait till the period mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cheque. The grievance of me petitioner is that the Magistrate is insisting for taking evidence as the case is of the year 2009, before the expiry of the time mentioned in the agreement. 7. There are lot of questions arise for consideration in such cases and there are doubts in the minds of the Magistrates also, regarding the effect of mediation agreement in cases under Section 138 of the Negotiable Instruments Act. 8. It is an admitted fact that Section 89 of Code of Civil Procedure provides mediation as one of the Alternative Disputes Resolution process for settling the issues between the parties in an efficacious and expeditious manner in respect of pending matters. In me decision reported in (Afcons Infrastructure Limited & Anr. v. Cherian Varkey Constructions Company Private Limited) 2010 KHC 4498), the Hon'ble Supreme Court has held that normally, the following cases are fit for any one of the Alternative Disputes Resolution process provided under Section 89 of the Code of Civil Procedure. "All other suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other Special Tribunals/Forums) are normally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit, before its acceptance). (ii) Disputes relating to election to public Officers (as contrasted from disputes between two groups trying to get control over the management of societies, clubs, association etc.) (iii) Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration. (iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc. (v) Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against government. (vi) Cases involving prosecution for criminal offences. 10. It is clear from the above dictum, that normally criminal cases are not fit to be referred for Alternative Disputes Resolution process. But under the Legal Services Authorities Act, criminal cases of compoundable nature, can be referred for Adalath and if the matter is settled in the Adalath, the Adalath is entitled to pass orders on that matter, as though, it is a Criminal Court constituted for that purpose. So normally, cases under Section 138 of the Nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued that since the matter is referred for mediation and the parties have settled the dispute in the mediation, then it will have the effect of a civil decree and the complainant cannot proceed with the criminal case and he can only execute the award as though it is a civil decree. It is true that in the decision relied on by the counsel for the respondent namely, Govindankutty Menon's case (supra), the Hon'ble Supreme court has held that if the case under Section 138 of the Negotiable Instruments Act is referred to Adalath by a criminal court and if the matter is settled in the Adalath, then by virtue of the deeming provision, an award passed by the Adalath based on the compromise has to be treated as a decree capable of execution by a civil court. In that case, a case under Section 138 of the Negotiable Instruments Act was referred to Adalath constituted under the Legal Services Authorities Act by a Criminal Court and in the Adalath, parties have agreed on terms and provided time for payment of the amount and that compromise was recorded and accordingly an award was passed in the Adalath and the criminal case was closed. When, the complainant filed an execution petition be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the amount payable as in the mediation, parties can forgo so many things for the purpose of achieving harmony between the parties and restore their relationship. So the amounts arrived in a mediation also cannot be used as evidence for coming to the conclusion that the amount mentioned in the cheque is not the real amount due, and the complainant is not entitled to maintain the action on the basis of that cheque. The court has to allow the parties to adduce evidence ignoring the mediation agreement and dispose of the case on the basis of evidence adduced by parties as it should not be put in evidence in view of the bar under rules 20, 21 and 22 of the Civil Procedure (Alternative Disputes Resolution) Rules Kerala 2008 which reads as follows:-. Rule 20:- Confidentiality, disclosure and inadmissibility of information- (1) The mediator shall not disclose confidential information concerning the dispute received from any party to the proceedings unless permitted in writing by the said party. (2) Parties shall maintain confidentiality in respect of events that transpired during mediation and shall not rely on or introduce the said information in any other proceedings as to: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of the cases expeditiously. Further, in the decision reported in Damodar S. Prabhu v. Sayed Babalal H 2010 (2) KLT 587 (SC) : 2010 (2) KHC 428), the Hon'ble Supreme Court has held that in cases where the accused in 138 cases are unnecessarily prolonging the case, though, it is a compoundable offence and if the compounding was not done at the earliest point of time, then the Court can record compounding at the subsequent stages before the Magistrate court by imposing 10% of the cheque amount as costs and if it is allowed in the Sessions Court or High Court 15% of the cheque amount to be imposed as costs and if it is before the Supreme Court 20% has to be imposed as costs to be paid and to be deposited with the Legal Services Authority. Further, in the same decision, some discretion was given to the courts to reduce the amount to be imposed as cost or even dispense with payment of me costs in appropriate cases. This was intended to prevent the unnecessary delay in disposing me case filed under Section 138 of the Negotiable Instruments Act by the accused in the case. So, under the said circumstances, if the unreasonable longer periods were provided in the agreement for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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