TMI Blog2014 (7) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties and that can be achieved by that and that will give a boost for a process of mediation to be used by the parties to resolve their disputes amicably. So, under the circumstances, this court feels that since six months period is provided will be over by 17.08.2014, the learned Magistrate is directed to keep the case till that date without insisting for evidence so as to allow the parties to honour the settlement which has been arrived in the mediation process and if the amount is not paid and the application for compounding is not filed within that time, then the learned Magistrate is directed to proceed with the case, considering the principles laid down in this decision regarding the mediation agreement which has not been honoured by the accused and dispose of the case in accordance with law. If a compounding application is filed on the basis of the same agreement later, then that can be taken only as a delaying process by the accused and it can be accepted only in terms of the guidelines provided in Damodar S. Prabhu's case (supra). - Crl. M.C. No. 1864 of 2014 - - - Dated:- 10-7-2014 - HONOURABLE MR. JUSTICE K.RAMAKRISHNAN For the Appellant: Syam J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the parties in the mediation, then it will have the effect of an award and the petitioner is not entitled to proceed with the case. His remedy is to execute the agreement as if it is an award passed under the Legal Services Authorities Act as a civil decree. 5. It is an admitted fact that the petitioner herein filed a private complaint against the first respondent alleging offences under Section 138 of the Negotiable Instruments Act alleging that the respondent issued a cheque for ` 5,00,000/- in discharge of his liability which when presented was dishonoured for the reasons funds in sufficient in his account and in spite of notice issued, he had not paid the amount and so he committed the offence punishable under Section 138 of the Negotiable Instruments Act. After conducting enquiry under Section 200, 202 of the Code of Criminal Procedure, the learned Magistrate has taken cognizance of the case as C.C. No. 4209/2009 under Section 138 of the Negotiable Instruments Act and notice was issued to the first respondent and he appeared through counsel and particulars offence were read over and explained to him and he pleaded not guilty and the case was posted for evidence. 6. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween bankers and customers; - disputes between developers/builders and customers; - disputes between landlords and tenants/licensor and licensees; - disputes between insurer and insured; (ii) All cases arising from strained or soured relationships, including - disputes relating to matrimonial causes, maintenance, custody of children; - disputes relating to partition/division among family members/co-parceners/co-owners; and - disputes relating to partnership among partners. (iii) All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including - disputes between neighbours (relating to easementary rights, encroachments, nuisance etc); - disputes between employers and employees; - disputes among members of societies/associations/Apartment owners Associations; (iv) All cases relating to tortuous liability including - claims for compensation in motor accidents/other accidents; and (v) All consumer disputes including - disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or 'product po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also allowing the parties to pay the amount and thereafter, withdraw the complaint under Section 257 of Code of Criminal Procedure or after payment for filing an application for compounding under Section 147 of the Negotiable Instruments Act. 11. Then, the question is what is to effect of mediation agreement in a criminal matter. Admittedly, if the matter is referred for mediation, the mediator is not acting neither as Adalath nor as an Arbitrator or Conciliator to resolve the disputes by passing an award either under the provisions of Legal Services Authorities Act or under the provisions of the Arbitration and Conciliation Act. Even if, the matter is referred in a civil case for mediation under Section 89 of the Code of Civil Procedure, even then, the mediator is not passing any judgment, but he is only facilitating the parties to arrive at the settlement and help them to draw the mediation agreement and after the agreement is signed by the parties, and counter signed by the Advocates, then, it will be forwarded to the Court which referred the matter and that Court will pass a decree on the basis of the agreement applying me principle under O. 23 R. 3 of Code of Civil Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed the finding and held that by virtue of the deeming provision under Section 21 of the Legal Services Authorities Act, even, in cases under Section 138 of the Negotiable Instruments Act if a compromise was accepted and an award has been passed in the Adalath, then that will have the effect of a civil decree and that can be executed through civil court as though it is a decree of a civil court. The facts are different in this case as already discussed, the mediation cannot be treated at par with Lok Adalath as mediator has no power to pass any award as provided under the Legal Services Authorities Act. So the dictum is not applicable to the facts in this case. 13. Then, the question is whether the agreement entered into between the parties in a mediation can be treated as evidence in a criminal matter. It may be mentioned here, unless the agreement is accepted by the court and a decree is passed under Section 89 of the Code of Criminal Procedure r/w O. 23 R. 3 of Code of Civil Procedure, that will have no effect, unless that has been converted into a conciliation agreement based on which an award is passed by the Conciliator under the provisions of the Arbitration and Conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Admission made by a party in the course of mediation proceedings. (e) The fact that a party had or had not indicated willingness to accept a proposal. (3) There shall be no stenographic or audio or video recording of the mediation proceedings. Rule 21:- Privacy-Mediation sessions and meetings are private; only the concerned parties or their counsel or authorised representatives can attend. Other persons may attend only with the permission of the parties or with the consent of the mediator. Rule 22:- Immunity - No mediator shall be held liable for anything bona fide or omitted to be done by him during the mediation proceedings for civil or criminal action nor shall he be summoned by any party to the suit to appear in a court of law to testify in regard to information received by him or action taken by him or in respect of drafts or records prepared by him or shown to him during the mediation proceedings. 14. So, that cannot be used in evidence in a court of law as well, unless, it was accepted by the parties and the terms of the agreements were put into effect by the parties. 15. Then, the question is what the Criminal Court will have to do in such cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as it was really a civil dispute which was converted into a criminal prosecution with a view to make the drawer of the cheque to honour the cheque than to send them to prison as mentioned in the decision reported in Damodar S. Prabhu's case (supra), Court can allow reasonable time to parties to fulfill the terms of the agreement so as to avoid prolonged litigation for realisation of the amount So, under the said circumstances, in order to promote the settlement arrived at in the mediation if a reasonable time is provided in the mediation agreement namely, up to 6 months and if the parties are willing to abide by the condition, then it is always better that court can wait for that much time to allow the parties to honour the settlement that has been arrived in the mediation and the purpose of the mediation is to restore the relationship between the parties and that can be achieved by that and that will give a boost for a process of mediation to be used by the parties to resolve their disputes amicably. If the accused did not pay the amount and it was referred for mediation at the request of the accused only as a method of delaying the matter, then the court must take it as ..... 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