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2017 DIGILAW 1128 (KER)

B. K. Emil v. Sunil Lawrence

2017-08-08

ALEXANDER THOMAS

body2017
JUDGMENT : 1. The petitioner is the accused for offence punishable under Sec. 138 of the Negotiable Instruments Act in S.T.No.10/2013 on the file of the Judicial First Class Magistrate's Court-I, Aluva, instituted on the basis of the complaint filed by the 1st respondent herein. There are two dishonoured cheques involved in this case, each of Rs.15 lakhs said to be issued on 18.1.2011 and 3.1.2011 respectively, thus totaling to Rs.30 lakhs. Anx.1 is the copy of the impugned complaint, which has led to the institution of S.T.No.10/2013 on the file of the above said trial court. The prayer in this petition is for quashment of the impugned Anx.A1 complaint and all consequential proceedings in S.T.No.10/2013. 2. Heard Sri.C.R.Syamkumar, learned counsel appearing for the petitioner (accused), Sri.Rajiv Nambisan, learned counsel appearing for R-1 (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. 3. It is common ground that the 1st respondent (complainant) herein had filed Civil Suit as O.S.No.249/2011 before the Sub Court, North Paravur, in which, the petitioner herein (accused) is the defendant therein, seeking recovery of the monies covered by the very same dishonoured cheques involved in this case totalling to Rs.30 lakhs. On the request of both sides, both parties were referred for attempting settlement through the Lok Adalat, constituted under the Legal Services Authorities Act. Anx.II is the copy of the plaint in O.S.No.245/2011 and in Anx.III is the award dated 17.12.2012 rendered by the Lok Adalat, which recorded settlement between the parties in terms of the compromise arrived at between the parties. The Lok Adalat has recorded the said compromise and has also directed refund of the entire court fee to the plaintiff as can be seen from a mere reading of Anx.III award dated 17.12.2012. As per Anx.III order, the petitioner has agreed to pay a total amount of Rs.31.95 lakhs to the complainant herein along with 8% interest thereon within a period of 3 months. It is not in dispute that the petitioner did not pay the abovesaid amount in terms of the award of the Lok Adalat and so the 1st respondent (complainant) was constrained to initiate execution proceedings before the civil court concerned for execution of Anx.III Lok Adalat award passed by the civil court. Accordingly, the Sub Court, North Paravur had issued Anx.IV sale notice dated 13.1.2015 in furtherance of the execution of the said award. Accordingly, the Sub Court, North Paravur had issued Anx.IV sale notice dated 13.1.2015 in furtherance of the execution of the said award. The main contention raised by the petitioner is that since the matter has already been compromised in the civil suit in terms of Anx.III award, the said award would bind the petitioner even in the present impugned criminal proceedings, which led to the institution of Anx.I complaint and therefore the continuation of the Anx.I criminal proceedings would be nothing short of abuse of the process of the court and on this limited ground, the petitioner seeks quashment of the criminal complaint. 4. The complainant would state that Anx.IV execution proceedings could not be effectively preceded against the property of the petitioner, as it could be learnt that M/s.Sundaram Finance has also raised a claim for that property. This Court had passed an order dated 28.7.2017 directing the Registry of this Court to call for a report from the Sub Court, North Paravur, who is dealing with execution of Anx.III Lok Adalat award dated 17.12.2012, in O.S.No.245/2011 as to the subsequent developments after the issuance of Anx. IV sale notice and whether the award money could be realised by the sale of that property, etc. 5. Now in compliance with this Court's order dated 28.7.2017, the Sub Court, North Paravur, which is executing Anx.III award, has submitted a report dated 3.8.2017 to the Registry of this Court. Therein it is stated that the respondent herein (plaintiff in the suit) had filed E.P.243/2013 before the Addl. Sub Court, North Paravur, wherein the first prayer was to execute the award by sale of the property charged for the award amount in O.S.No.245/2011, which is comprised in Re- Sy.No.142/6 and 144/8 and having an extent of 27.5 cents and that the property was proclaimed for sale to 11.2.2015 and the property could not be sold on that day. That it is seen from the records that the statutory time of 15 days was not obtained after effecting proclamation. On 10.02.2015 the judgment debtor filed EA No.118/2015 to set aside the exparte order passed against him in E.P. No.343/2013 and that on 20.02.2015, a copy of the order dated 10.2.2015 passed by this Court in OP (C) No.380/2015 dated 10.02.2015 was received by the said court, wherein this Court had granted stay of confirmation of sale for a period of two weeks. That on 06.03.2015 another order in the above O.P. is received from this Court extending the stay for one month and on 28.03.2015, further order was received extending the stay for three weeks and that as per the proceedings on 12.03.2015, executing court had closed the E.P. since the matter was stayed and without prejudice to the right of the decree-holder to reopen the execution petition as and when the stay is vacated. It is further stated in the said report dated 3.8.2017 of the Sub Court that on perusal of the execution petition, it is seen that the claim therein is for the entire award amount of Rs.31,95,000/- with interest and costs and that the award money is not realised by the sale of the property charged. Further it is stated in the said report that after closing the above execution petition, on 21.12.2016, M/s. Sundaram BNP Parribas Home Finance Co. Ltd. has filed a petition on 21.12.2016 under Order XXI Rule 58 r/w Order XXXVII, Rule 8 CPC claiming adjudication of its right over 9.92 Ares of property in R.S.No.142/6/3, which forms part of the property proclaimed in EP 343/2013. The calm petitioner claimed in that petition that the above said property was taken possession under the SARFAESI Act and the claim petitioner also contended that an equitable mortgage was created over the said property on 30.05.2009 i.e. prior to the attachment in O S 245/2011 and the said petition is now pending for objections of the decree-holder and for enquiry and is posted to 24.08.2017, etc. Thus it is evident from the above said report of the civil court that Anx.III award has not yet been executed and that the entire award money consisting of the award amount, interest and cost, has not yet been realised by the sale of the property charged and a claim has been now set up by M/s. Sundaram BNP Parribas Home Finance Co. Ltd. over the said property as stated herein above. Therefore, these facts would clearly show that the petitioner has not paid the entire amount due to the complainant in terms of Anx.III award and further that the complainant herein (plaintiff) has not been able to realise the award money, etc. through the sale of the property in the execution petition, etc. 6. Therefore, these facts would clearly show that the petitioner has not paid the entire amount due to the complainant in terms of Anx.III award and further that the complainant herein (plaintiff) has not been able to realise the award money, etc. through the sale of the property in the execution petition, etc. 6. One cardinal aspect of the matter is that Anx.III award passed by the Lok Adalat is not in respect of the impugned Anx.I criminal proceedings, but is only in respect of Anx. II civil proceedings in O.S. No. 245/2011 on the file of the Sub Court, North Paravur. Moreover, the said award was passed on the basis of a voluntary compromise arrived at by the rival parties and even till date; the petitioner (accused) has not paid the amounts due to the complainant in terms of the Lok Adalat award passed in the civil matter. True that the civil suit has been filed seeking recovery of the monies covered by the very same dishonoured cheques which are the subject matter of Anx.I criminal proceedings. But the contention of the petitioner that Anx.III award passed in the civil proceedings would bar Anx.I criminal proceedings is absolutely untenable and is devoid of any merit. If Anx.III Lok Adalat award was in respect of Anx.I criminal proceedings or if Anx.III Lok Adalat award happened to be a joint compromise award in respect of both the civil proceedings as well as the criminal proceedings, then certainly the petitioner could have validly contended that such award is binding on both the parties even in the criminal proceedings in the light of the legal principles laid down by the Apex Court in the judgment in K.N.Govindan Kutty Menon v. C.D. Shaji, reported in (2012) 2 SCC 51 . In the said judgment of the Apex Court in K.N.Govindan Kutty Menon's supra it has been held in para 26 thereof that even if a matter is referred by a criminal court under Sec. 138 of the Negotiable Instruments Act, and by virtue of the deeming provisions in Sec. 21 of the Legal Services Authorities Act, such an award passed by the Lok Adalat based on a compromise in the criminal complaint for Sec.138 offence has to be treated as a decree capable of execution by a civil court. But such situation does not arise in the instant case, inasmuch as Anx.III award is not in respect of Anx.I criminal proceedings. 7. It is not in dispute by both the parties that the said Lok Adalat award was solely in respect of Anx.II civil proceedings between the parties. That apart, Anx.III award was passed as early as on 17.12.2012, wherein the petitioner had unconditionally undertaken in the compromise that he would pay off Rs.31,95,000/- along with 8% interest thereon to the respondent (complainant) within a period of 3 months. The said amounts covered by Anx.III award have not been paid till date and moreover, even the execution proceedings before the civil court have also not progressed much and the award amounts could not be realised so far by the respondent complainant through the sale of the charged property, etc. If the situation had been that the petitioner has actually paid the amounts due to the respondent complainant in terms of Anx.III award or the award amount could be realised through the sale of the property in the civil execution proceedings, then certainly that would be a relevant aspect to be taken into consideration in respect of the impugned criminal proceedings. In a case where the amounts due have already been realised by the respondent complainant, then in an appropriate case, the accused can certainly make a plea under Sec.482 of the Cr. P.C. that this Court may pass necessary orders in the interest of justice under that provision, taking note of the fact that the entire amounts due for the very same dishonoured cheques have already been paid. So long as monies so due in the Lok Adalat award, passed in the civil suit have not so far been paid, then the contention of the petitioner that the continuation of the criminal proceedings would amount to grave abuse of the process of the court, is bereft of any bonafides or merit. The petitioner cannot take advantage of his own wrong and seek quashment of the impugned criminal proceedings. In the facts of this case, if the plea of the petitioner is allowed by this Court, then it will result in a highly disastrous situation for the respondent (complainant) inasmuch as he has not secured a single paise even in the execution of the civil matter and yet he will have to face situation of quashment of his complaint. In the facts of this case, if the plea of the petitioner is allowed by this Court, then it will result in a highly disastrous situation for the respondent (complainant) inasmuch as he has not secured a single paise even in the execution of the civil matter and yet he will have to face situation of quashment of his complaint. That would be a travesty of justice and the extra ordinary powers conferred on this Court under Sec. 482 of the Cr. P.C. cannot be invoked and consideration of the prayer made by the petitioner would amount to grave miscarriage of justice. Therefore, this Court is not in a position to quash the impugned criminal proceedings. 8. Sri.Rajiv Nambisan, learned counsel appearing for the respondent (complainant) would submit that at any time during the pendency of the criminal trial if the petitioner either pays entire amounts due in terms of Anx.III Lok Adalat award, or the complainant is successful to realise those amounts through the execution proceedings, then certainly the complainant will be amenable to reach at any amicable mediated settlement in the matter, etc. Further, Sri.Rajiv Nambisan, learned counsel appearing for the respondent (complainant) would also submit that in case the amounts are so realised in the civil proceedings as mentioned herein above, then that could certainly be a relevant factor that may be taken into consideration by the criminal court while deciding the issue of the quantum of the sentence and the quantum of compensation/fine amount, etc. The said submissions made by the respondent complainant are indeed fair and reasonable. Accordingly, it is ordered that the plea of the petitioner for quashment of the impugned criminal proceedings is refused and criminal proceedings in S.T.No. 10/2013 on the file of the trial court will proceed, in accordance with law. The said submissions made by the respondent complainant are indeed fair and reasonable. Accordingly, it is ordered that the plea of the petitioner for quashment of the impugned criminal proceedings is refused and criminal proceedings in S.T.No. 10/2013 on the file of the trial court will proceed, in accordance with law. At any time during the pendency of the said trial, if the petitioner either pays the entire amounts due under Anx.III Adalat award or the respondent complainant is successful to realise those amounts in execution proceedings, etc., then the petitioner will be at liberty to make an appropriate motion before the trial court for settlement of the disputes based on such realisation of the amounts in the civil execution proceedings and in such eventuality, with the consent of both sides, the trial court may refer the parties for mediation and proceedings in furtherance of such settlement could be taken note of. In such a situation, if the trial is not already concluded, the parties will at liberty to seek compounding of the offences before the trial court and then the petitioner will be at liberty to work out his remedies in accordance with law. These observations made by this Court are only in the context of a future eventuality that either the petitioner pays of the entire amounts due under Lok Adalat award or the respondent (complainant) is able to realise the said award money in execution proceedings. It is also made clear that, with the consent of both sides, both sides will be at liberty to seek any other appropriate settlement of the disputes through mediation or out of court settlement talks and parties will be at liberty to seek appropriate remedies in such situation. However, it is made clear that that none of these observations shall in any manner fetter the trial court from proceeding with the trial of the case in accordance with law. With these observations and directions, The afore captioned Crl. M.C. stands dismissed.