TMI Blog2019 (4) TMI 1625X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a reference to mediation in the context of criminal case, the court must consider as to whether a settlement reached by such effort would be acceptable for the criminal process to be brought to an end. The court while considering reference of the parties to a criminal case to mediation must before even ascertaining as to whether elements of settlement exist first examine, by preliminary scrutiny, the permissibility in law for the criminal action to be brought to an end either because the offence involved is compoundable or because the High Court would have no inhibition to quash it, bearing in mind the broad principles that govern the exercise of jurisdiction under Section 482 Cr.P.C. - CRL.M.C. 5765/2018, 5768/2018, 5785/2018, 5805/2018 & 5995/2018 - - - Dated:- 22-4-2019 - MR. R.K. GAUBA J. Petitioners Through: Mr. Gurmit Singh Hans Ms. Aarti Machanda, Advs. Respondents Through: Mr. Kewal Singh Ahuja, APP for the State with SI Alok Bajpai, Spl. Cell/SR. Mr. Dayan Krishnan, Sr. Adv. with Mr. Harsh Sinha, Adv. for R-2. Mr. J.P. Sengh, Sr. Adv. With Ms. Veena Ralli, Adv. / Organising Secretary, Delhi High Court Mediation and Conciliation Centre. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Four cases of credit card frauds 3. The first captioned matter relates to FIR no.47/2003 of police station Special Cell (SB) of Delhi Police, the settlement dated 03.07.2018 on the basis of which the prayer for quashing was made, also covering three other criminal cases they having arisen out of FIR nos.45/2003, 53/2003 and 54/2003, all of the same police station. The next three captioned petitions i.e. Crl. MC Nos.5768/2018, 5785/2018 and 5805/2018 pertain to the said three other connected FIRs. 4. It may be mentioned here that all the aforesaid four cases involve four common petitioners, they being Charanjit Singh Chadha @ Shampy, Dinesh Gupta, Rajiv Arora and Yogesh Mahajan. The case relating to FIR no.47/2003 (Crl. MC 5765/2018) involves one Yashpal Chaudhrani as additional accused (first petitioner). The FIR no.53/2003 (Crl. MC 5768/2018) involves one Akhil Arora as additional accused (first petitioner). The case relating to FIR no.45/2003 (Crl. MC 5785/2018) involves four additional accused (petitioners) viz. Adil Khan, Suhail Khan, Imran Khan @ Mehmood Khan and Aman Nayyar. The last case relating to FIR no.54/2003 (Crl. MC 5805/2018) involves one add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the petitioners (of Crl. MC 5785/2018) for offences under Sections 420, 468, 471, 474, 379, 409 and 120-B IPC. 9. The copy of charge-sheet dated 18.12.2003 submitted on 22.12.2003, upon conclusion of investigation into FIR no.47/2003, reveals that it was based on complaint dated 08.07.2003 of the representative of the bank. This complaint was dealt with as one in continuation of FIR no.45/2003. The first informant was focussing here on the role of petitioner Yash Chaudhrani, proprietor of M/s. Kurta Ghar, a trading firm having business from Shop no.6287, Kohlapur Road, Kamla Nagar, Delhi. The said trader had entered into a merchant-establishment agreement with the bank, the necessary equipment (EDC Machine) having been provided so that he could accept the payments against credit cards of specified nature (Master Card and Visa). Reference was made to certain recoveries (plastic cards and floppies) that had been effected from petitioners (Yogesh Mahajan, Dinesh Gupta and Rajiv Arora) during investigation of FIR no.45/2003. The investigation revealed some of the said plastic cards containing the stolen data of different persons had been used at M/s. Kurta Ghar. The data ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a @ Shampy who had arranged the stolen data of genuine customers. The police through the above mentioned charge-sheet sought prosecution of the petitioners (of Crl. MC 5805/2018) for offences under Sections 409, 420, 120-B, 34 IPC. 12. It is clear that the source of data which was stolen and found in possession of the accused has not been traced. Prima facie, these acts were committed in wake of deep-rooted criminal conspiracy. The proceedings in the cases reveal some of the accused are absconding. 13. The first four petitions seek the proceedings in the criminal cases referred to above to be quashed on the ground that the bank through its representative has amicably settled the dispute through mediation. The case of obscene calls and IT Offences 14. The last captioned matter (Crl. MC 5995/2018) pertains to FIR no.454/2013 of police station Amar Colony, the investigation into which has resulted in charge-sheet dated 19.06.2016 being presented seeking trial of the petitioners of the said case for offences under Sections 66-A and 67 of Information Technology Act, 2000, the second respondent being the first informant (complainant). As per the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, reads thus :- On the complaint of HDFC Bank alleging misuse of credit cards by resort to cloning and drawl of some amounts at points of purchase, the above cases were registered by Special Cell, Delhi Police. During investigation the different roles of inter-alia the accused persons came to the fore. The matter is more than 15 years old. Keeping in view the quantum of finances involved and the time the trial is likely to take, the parties conferred with each other and got the matter referred for mediation. Sh. Amit Sahni has been duly authorized by the complainant bank inter-alia for taking a decision and executing agreement / compromise with the opposite side by virtue of Power of Attorney dated 18.03.2016 executed in his favour. A copy of the same is annexed herewith. Pursuant to negotiations, the complainant and all the accused persons with their respective counsels have been able to resolve / settle their disputes on the following terms and conditions :- 1. That all the respondents / accused persons have undertaken to collectively pay a total sum of ₹ 12,00,000/- (Rupees Twelve Lakh only) to the complainant HDFC Bank Ltd. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said criminal action to be brought to an end. The petitioners had approached this court by Crl. MC 4428/2018 seeking the FIR of fifth petition to be quashed on the ground the parties were likely to arrive at a settlement . The petition was withdrawn and dismissed accordingly on 28.11.2016. Another petition Crl. MC 1144/2017 was presented in April 2017 on the ground that the parties had settled the matter . The petition was dismissed by a learned single judge of this court, by order dated 24.04.2017, the relevant part thereof reading thus: 1. Learned APP for the State submits that though the settlement has been arrived at between the parties, however the allegations in the complaint were that the petitioners posted a picture of the respondent No.3 on the ORKUT alongwith the phone calls resulting in respondent no.3 receiving obnoxious calls. Petitioners were the students of respondent No.3 who was the teacher. 2. Considering the nature of allegations and evidence collected during the course of trial, even though the parties have settled the matter, this Court is not inclined to quash the above-noted FIR and the proceedings pursuant thereto. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt for recording of statement and give their no objection / affidavit required for the quashing of the FIR. c. That the first party has already received a sum of ₹ 80,000/- (Rupees Eighty Thousand only) from the second party and the second party undertakes to pay the balance amount of ₹ 1,20,000/- (Rupees One Lakh Twenty Thousand only) to the first party at the time of quashing of the above said FIR. d. The parties agree that they will not indulge in any litigation in future against each other and it has been assured by them to each other that they will not give any cause of complaint to each other. xxx (emphasis supplied) THE CONCERNS 25. On 16.11.2018, the first captioned petition was filed. The background facts of this matter, the contentions of the parties and the issues which arose therefrom were noted at length in the proceedings recorded which, to the extent relevant, read thus :- 8. The present petition invoking inherent power and jurisdiction of this court under Section 482 Cr.P.C. has been submitted seeking quashing of the proceedings arising out of FIR No.47/2003 primarily on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved in the said other case the parties therein were locked in three other matters, the said other matters relating to matrimonial dispute, one being a State case involving offence punishable under section 498-A IPC. But, it was conceded that the allegations of sexual assault, unnatural offence and rape were directed against persons other than the husband. 11. Though the attention of the counsel in the abovesaid other case having been drawn to the ruling of the Supreme Court in Parbatbhai Aahir (supra), on instructions, he chose to withdraw the said petition which was dismissed accordingly by order passed yesterday, the issue persists, particularly against the backdrop of the petition at hand, as to whether it is advisable for those concerned with legal process to take or permit recourse to mediation, in the teeth of law, as settled by the Supreme Court which would inhibit the inherent power under Section 482 Cr.P.C. to be availed to quash such criminal proceedings in serious or heinous crimes including those reflecting mental depravity , as indeed, economic offenses involving financial well-being of the State or financial or banking institutions, affecting the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on numerous dates reflecting difficulty in procuring the presence of the accused persons, or their counsel, for assistance in consideration of charge. There has been gross wastage of the judicial time and energy in irrelevant or inconsequential matters, the presiding officer(s) being more pre-occupied with administrative responsibilities than judicial duties, there being no effective control, the directions for the case to be taken up on several dates for charge to be considered more in the nature of lip service than out of sincerity of purpose. The petitioners seem to have used all possible methods to delay meaningful progress in any of these prosecutions including by absenting at will, every time the duress process issued being cancelled, almost for the asking, there being no accountability on the part of anyone including the prosecutor in charge. 27. A whole lot of confusion seems to be prevailing. This can be illustrated by the fact that in the case relating to FIR no.45/2003, some of the order-sheets prior to 12.01.2018 indicate the case was still at the stage of consideration of charge. Yet, on 12.01.2018 reference is made to the summons sent to the first informant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was transferred from the court of Ld. CMM, Delhi to the court of Ld. CMM, New Delhi. Further, the case remained pending due to the absence of the one or the other accused on different dates. Accused Aadil was absent on 12.02.05, Accused CHARANJIT Chadha was absent on 12.12.05 and NBWs were issued against him which were got cancelled on 20.03.06. On 29.05.05, accused Yogesh Mahajan was absent and NBWs were issued against him. Accused Yogesh Mahajan was in JC in some other case and production warrants were issued on 31.08.06 but on NDOH he was not produced from the court and thereafter, production warrants were issued on 07.11.06 but on NDOH accused Yogesh Mahajan appeared and NBWs were got cancelled before the 29.01.07 but on NDOH i.e. 29.01.07, accused Rajiv Arora was absent and NBWs were issued against him which were cancelled 05.02.07. On 13.05.14, all accused persons were absent and BWs were issued against him. Moreover, the IO did not file the report from GEQD and on 10.02.09, he stated that he would not be filing any such report. This fact also led to the delay in the matter. Another reason for the matter having remained pending is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court, particularly those of 12.01.2018 and 09.02.2018 on the file of FIR no.47/2003, whereby presence of the authorised officer of the bank had been insisted upon in the context of request for opportunity made by the defence for exploring chances of settlement. He took exception to the submission of the State, as recorded in the proceedings of 16.11.2018 regarding there being element of criminal breach of trust by the bank and its employees . He has set out in his affidavit the gist of the resolution dated 07.03.2019 of the board of directors of the bank as under :- (i). ... acknowledge that the Bank representative participated in the mediation and settlement process because the matter was referred to settlement by the court and mediation was carried out by the judicial officers, due to which there was an oversight by the Bank representative to agree as part of this settlement to give a no-objection for quashing of the criminal proceedings (involving some non-compoundable offences) arising out of the relevant FIRs being 47/2003, 45/2003, 53/2003, 54/2003; and to tender apology for the said oversight. (ii). Take appropriate steps for due revocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agree mutually to settle their dispute and grievances against each other in an amicable manner on the terms and conditions mentioned in the settlement reached between the parties, but the matter with regard to quashing of the criminal proceedings entirely remains within the power of the Hon ble Court under Section 482 of Cr. PC as quashing of such proceedings is always left to the discretion of the Hon ble court keeping in mind the guidelines enumerated in various judgments of the Apex Court. 4. The High Court, in exercise of such powers may refuse to quash any criminal proceedings which may involve heinous or serious offences or offences of mental depravity, offences under the special statutes and by looking at the antecedents of the accused and scan the entire facts to find out the thrust of the allegations so as to find out as to whether the incorporation of a penal provision of law is there for the sake of it or there is sufficient evidence on record which would lead to framing of charge or conviction. 5. The Hon ble Supreme Court in various judgments pronounced since 2012 has elaborately discussed and laid down principles / guidelines which may be kept i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. (vi). Cases involving prosecution for criminal offences Criminal cases 35. The Code of Criminal Procedure, 1973 (Cr.P.C.) governs the process of investigation, inquiry, or trial pertaining to criminal offences. The Indian Penal Code, 1860 (IPC) is the general law defining various offences prescribing the punishment therefor. The said law (IPC) is supplemented by various other enactments (special statutes) which also define certain other offences prescribing the punishment for each. Generally speaking, the procedural law, as provided by Cr.P.C., governs all such criminal law processes, be it relating to offences under IPC or under special statutes (see Section 4 Cr.P.C.). The special criminal laws, however, at times, make a departure from the general criminal procedure and for such purposes come with necessary provisions indicating the extent to which Cr.P.C. is to be applied with requisite modification. 36. The objective of criminal law is primarily to visit the offender with certain consequences. He may be made to suffer punishment or may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that a Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under the law . A practice has grown over the period for cases of such nature, unduly large in number, to be referred to Lok Adalats under Section 19 of Legal Services Authority Act, 1987. The settlements brought before the courts of Metropolitan Magistrates, whether through the process of mediation, or before Lok Adalat, or otherwise by the parties on their own, have been resulting in prosecution under Section 138 of the Negotiable Instruments Act, 1881 being treated as compounded, the parties thereafter expected to abide by the terms of such settlement. Inherent Power of High Court (S. 482 Cr.P.C.): Jurisprudence 40. The High Court is at the head of the judicial apparatus in each State with power of control and superintendence over all courts subordinate to it, including criminal courts. Aside from such supervisory role conferred on the High Court, by the Constitution of India, 1950, particularly Articles 226 and 227, the Code of Criminal Procedure, 1973 also acknowledges, by Section 482, its inherent power to secure the ends of justice. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the negative . It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. (emphasis supplied) 45. Holding that special features in ...matrimonial matters are evident and that it is the duty of the court to encourage genuine settlements of matrimonial disputes , referring to Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojiroo Angre, (1988) 1 SCC 692 , it was further observed that : 11. .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. (emphasis supplied) 48. Pertinent to note, in Gian Singh (supra), the Supreme Court held as under:- 61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ao (supra), was also in the context of a criminal case involving offence under Section 498A IPC. The Supreme Court, taking note of mediation (as a method of alternative dispute redressal) having got legal recognition, made observations regarding settlement of matrimonial disputes thus :- 39. Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted out. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres 44. We, therefore, feel that though offence punishable under Section 498-A IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g matrimonial disputes, in State of Madhya Pradesh vs. Madan Lal, (2015) 7 SCC 681, against backdrop of charge of rape, following the dispensation in Gian Singh (supra) and Narinder Singh (supra), the Supreme Court held thus:- 18. We would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the purest treasure , is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case and no exhaustive elaboration of principles can be formulated. 16.6 In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. 16.7 As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. 16.8 Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doer and the victim, the High Court is to bear in mind as to whether the possibility of conviction is remote and oblique and further, if the continuation of the criminal case would lead to oppression and prejudice or extreme injustice for the accused. (vii). The considerations which would weigh with Court include the antecedents of the accused, possible lack of bona fides, his past conduct and that includes the question as to whether he had earlier absconded and as to how he had managed with the complainant to enter into a compromise. (viii). But, the High Court, when called upon to exercise the power under Section 482 Cr. PC to bring the criminal case to an end on the basis of settlement, must steer clear of intervention in heinous or serious offences, including those involving mental depravity , as indeed economic offences affecting the financial and economic well being of the State , such as murder, attempt to murder, extortion, forgery, rape, dacoity, financial or economic frauds, cases under Arms Act, etc., the reason being that such offences are not private in nature but have a serious impact upon society , and continuation of trial thereof is ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically in question, there is thus no authoritative judicial pronouncement prohibiting the same. x x x 60. Mediation undoubtedly provides an efficient, effective, speedy, convenient and inexpensive process to resolve disputes with dignity, mutuality, respect and civility where parties participate in arriving at a negotiated settlement rather than being confronted with a third party adjudication of their disputes. The very fact that it enables warring parties to sit across the table and negotiate, even if unsuccessful in dispute resolution, undergoing the process creates an atmosphere of harmony and peace in which parties learn to agree to disagree . x x x 63. ... Section 320 of the Cr.P.C. enumerates and draws a distinction between offences as compoundable, either between the parties or with the leave of the court. This provision clearly permits and recognizes the settlement of specified criminal offences. Settlement of the issue(s) is inherent in this provision envisaging compounding. The settlement can obviously be only by a voluntary process inter se the parties. To facilitate this process, there can be no possible exclusion of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the court is to make a reference of a criminal case to the process of mediation merely for the asking or should there be scrutiny before such reference; and further as to whether the mediator is obliged to proceed ahead, hold parleys to negotiate and broker some settlement irrespective of the nature of offences only because there is a reference from the court. 60. Generally speaking, the disputants locked in a lis are lay persons who do not understand the technicalities of law and procedure. They need to be guided on these aspects and it is for this and such other reasons that there is always insistence on availability of legal aid and advice. The counsel assisting the litigants are trained in law and the advice which they render is, thus, expected to be in accord with law. 61. The process of mediation as a potent ADR tool has gained currency, acceptability and credibility in India over the last decade and more possibly because it has been regulated through court-annexed mediation centres, under the close watch, guidance and supervision of the judicial organ; so much so that the process is legitimately expected to adhere to the discipline of the rules framed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trained lawyers, and judges, would save them from the vagaries of criminal law process (inquiry, investigation or trial), should they be inclined for give-and take and reach a settlement. To put it simply, the litigants assume the legitimacy of the process and acceptability in law of what such process produces as the settlement . 64. At the hearing on these matters, the learned senior counsel representing HDFC Bank repeatedly submitted that in all the four cases of credit card frauds, bank s representatives had been summoned by the Court, not for giving evidence, but to ask him to join the process of mediation since the accused persons facing the trial were requesting for negotiated settlement and, thus, the bank s representatives proceeded to participate in the mediation, only because the matter had been referred for such purposes by the court . 65. The learned senior counsel appearing for Delhi High Court Mediation and Conciliation Centre submitted that when the Court refers a case for mediation, the centre is duty bound to honour and respect such reference and take the parties through the mediation to make sincere efforts to assist them in resolving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial transaction on the basis of acknowledgement by a cheque issued (but which was dishonoured upon presentation) would be generally encouraged and once the parties have arrived at a compromise, the court would ordinarily be inclined to decide the case accordingly, provided the terms are lawful and there is free will and volition. The bouncing of the cheque may, however, also have given rise to a prosecution by complaint under Section 138, Negotiable Instruments Act, 1881. It is legitimate expectation of the defendant in the civil suit (who in such scenario would also be an accused in the criminal case) that though the reference to mediation is by the civil court, the criminal case is also concluded by the settlement to which he is agreeable. The mediator, thus, can assist the parties to enter into a settlement which would be acceptable both to the civil court for a compromise decree and to the criminal court for permitting the parties to compound the offence. 70. But, situations may arise where the request for additional settlement to be included in the terms of compromise by mediation relates to a case of heinous offence e.g. the offence of rape (punishable under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpoundable or one respecting which there would be no inhibition felt by the High court in exercise of its inherent power under Section 482 Cr.P.C., bearing in mind the relevant jurisprudence. 72. It is hoped and expected that the criminal courts, and the mediation centres shall abide by the above guidelines in future. It may be added that the above would equally apply mutatis mutandis to the other ADR methods. DECISION ON THE PETITIONS 73. Having regard to the principles that govern exercise of power under Section 482 Cr.P.C, the settlement agreements reached in the five cases at hand are unacceptable. 74. The four cases of credit card frauds relate to deep-rooted criminal conspiracies leading to serious offences being committed, cheating the public at large and the banking system. In that sense, the offences committed are not private in nature. Instead, they have a serious adverse impact on the financial and economic well being of the State and its banking institutions. Such frauds, if actually committed, tend to erode the confidence of the people at large. Whether the bank likes it or not, the fact remains that data of innocent customers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remains that the case involving the element of mental depravity cannot be quashed on settlement. 77. Thus, all the five petitions are liable to be dismissed. Ordered accordingly. DEALING WITH OTHER CONCERNS 78. A criminal court cannot apply the procedure mindlessly. Liberty of an individual is important. But, the accused cannot be permitted to wrest the initiative from out of control of the presiding judge. He cannot hold the criminal law machinery to ransom. If released on bail, it is his obligation to appear and participate on each date of hearing. If he has any valid reason to remain absent, he must seek exemption. The criminal court is not a room with a revolving door where the accused can enter into or exit from at his own whims or fancies. The judge presiding over a criminal trial must keep everyone in discipline, particularly in the matter of appearance in time. If a pattern or tendency of truancy is noticed, necessary consequences must follow. 79. The manner in which the accused persons in the credit card fraud cases have played with the procedure, absenting at will, reappearing at their convenience, requesting for the duress processe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Metropolitan Magistrates and Civil Judges all over Delhi, particularly at New Delhi sessions division. These cases have rendered civil litigation and serious criminal cases secondary, which is not healthy. The move in 2008 to create special courts at Dwarka Court Complex for such cases filed by financial institutions had proved to be very effective. It had freed the regular magisterial courts from such work so that they could devote more energy on serious offences. It is time the court reconsidered that modal once again by utilizing space now available at Dwarka Court Complex by recent moving of Labour Courts, etc. Shifting of such work from courts of regular magistrates will facilitate progressive movement in regular criminal work and bring timely justice, a goal for achievement of which the court is to always remain committed. 85. The report of the Chief Metropolitan Magistrate also indicates that the said court has a pendency (as on the date of the report) of over two hundred cases which are more than ten years old. A large number of cases requiring priority with concentration in one court do clog the progress. It does not call for much imagination to understand that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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