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2018 DIGILAW 323 (KER)

Shiyas K. B. v. Manoj Paul

2018-04-10

ALEXANDER THOMAS

body2018
ORDER : 1. The prayers in the above Original Petitions (Criminal) filed by the 1st respondent in the above I.As. under the enabling provisions contained in Article 227 of the Constitution of India are for directions to the competent Judicial Magistrate concerned to keep in abeyance all further proceedings in respect of the four private criminal complaints concerned in these cases for the offences punishable under Sec.138 of the Negotiable Instruments Act. 2. During the pendency of the above Original Petitions, at the request of the parties they were referred for settling the disputes through the Kerala State Mediation and Conciliation Centre, attached to this Court. The 1st respondent in the above I.As. had instituted some First Information Statements before the Police authorities concerned alleging certain offences against the applicants in the I.As. and some crimes were thus registered against the respondents in the O.Ps. (Crl.)/applicants in the present I.As. on the basis of such proceedings set in motion by the 1st respondent in the I.As. During the course of mediation proceedings, both sides agreed to settle the disputes whereby as against the total amount of Rs.50,10,000/- covered in respect of the four impugned complaints for the offence under Sec.138 of the Negotiable Instruments Act, the 1st respondent in the I.As./petitioner in the O.Ps./accused in the complaints had agreed to pay a total sum of Rs.45 lakhs to the respondents in the O.Ps./applicants in the present I.As. (complainants) in full and final settlement of the amounts due in those transactions. The 1st respondent in the I.As. had also agreed to withdraw the complaints lodged by him against the above complainants, etc. It was agreed that the above said amount of Rs.45 lakhs will be paid within three months, i.e., on or before 31.8.2017 without fail and that if the amounts are not paid, the complainants are at liberty to execute the agreement and get the amount of Rs.45 lakhs with interest @ 12% per annum till the date of realisation and the parties further agreed that no further deprecation exists between them in this regard and no further claim shall be lodged. The above said mediation agreement dated 29.5.2017 was made available by the Mediation Centre for the perusal of this Court and both sides submitted that this Court may record the mediation agreement and may pass necessary orders in the light of the mediation agreement, so as to quash the criminal proceedings impugned in these O.Ps. and also granting liberty to the complainants to initiate appropriate proceedings for quashment of the crimes registered against them at the behest of the accused in the above complaints. It was also agreed to by the learned counsel appearing for the accused that in the event of the complainants filing a petition for quashment of the above-referred crimes, then he would support the prayer for quashment in the light of the mediation agreement, etc. Thus, with the consent of both sides and in the light of the above said mediation agreement dated 29.5.2017, this Court had passed a common judgment dated 2.6.2017 finally disposing of the above Original Petitions (Criminal) with the following directions : “(i) These matters are disposed of in the light of the provisions contained in the mediation agreement and further on the basis of the submission made by both parties. (ii) The 1st respondent herein will be at liberty to file appropriate application for quashing the proceedings in the crime registered as Crime No.3473/2016 of Aluva Police Station, in which the present petitioner is the defacto complainant and the submission on both sides that the petitioner herein will also support the plea for quashment of those proceedings is also recorded. (iii) In terms of clause (5) of the mediation agreement, it is ordered that in the light of the said mediation agreement, no further litigation exists between the parties in that regard and no claim will be lodged. However, it is made clear that in terms of clause (4) of the mediation agreement, in case Rs.45 Lakhs agreed to be paid on or before 31.8.2017 either in whole or in part, then the respondent herein will be at liberty to effectuate the provisions of the mediation agreement so as to get the unpaid amounts in that regard along with interest @ 12 % p.a. till realisation, by initiation of appropriate proceedings in that regard.” 3. Now, it is not in dispute that the accused has not paid any amounts to the complainants in pursuance of the above said mediation agreement and no amounts whatsoever have been paid in that regard even till date. In the light of the subsequent aspects, the complainants have filed I.A.Nos.533, 535, 534 & 193 of 2018 respectively in O.P. (Crl.) Nos.168, 219, 218 and 220 of 2017, praying for directions from this Court to direct the 1st respondent in the I.As. to abide by the terms of the settlement and to pay the agreed amount of Rs.45 lakhs to the respective complainants involved in these cases in the interest of justice. The complainants have also filed the afore captioned I.A.Nos.564, 562, 565 and 563 of 2018 in the above said four Original Petitions, praying to recall the impugned judgment dated 2.6.2017 rendered in these Original Petitions on the ground that the same has been vitiated by fraud at the instance of the petitioner in the O.Ps. In that regard the main contention of the applicants in those I.As. is to the effect that the accused had solemnly and voluntarily agreed before the Mediation Centre of this Court as well as before this Court that he would pay Rs.45 lakhs to the respective complainants in these complaints and that even till date he has not even paid a single paise on that account and that therefore, it clearly shows that the accused had made false assurances before the Mediation Centre and before this Court knowing fully well that he will not be able to honour those mediation agreements to pay off the due amounts to the complainants and that therefore, the said mediation agreement and consequently, the judgments passed by this Court on the basis of such agreements are clearly vitiated by fraud and misrepresentation at the behest of the accused in these cases. 4. Heard Sri. P. Shaijan Joseph, learned counsel appearing for the applicants in these I.As. (respective complainants concerned), Sri.Sanil Jose, learned counsel appearing for the 1st respondent in the I.As./accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for the respondent-State in these cases. 5. Initially the prayers in I.A.Nos.533, 535, 534 and 193 of 2018 filed in these four Original Petitions (Crl.) are to be dealt with. As stated herein above, the prayers in those I.As. 5. Initially the prayers in I.A.Nos.533, 535, 534 and 193 of 2018 filed in these four Original Petitions (Crl.) are to be dealt with. As stated herein above, the prayers in those I.As. are for directions from this Court, so as to direct the accused to abide by the terms and conditions of the mediation agreement dated 29.5.2017, as recorded in this Court’s judgment dated 2.6.2017 in the above O.Ps. and to ensure that the accused thus pay the total agreed amount of Rs.45 lakhs to the respective complainants in these four complaints. Sri.Sanil Jose, learned counsel appearing for the accused, would submit on the basis of instructions of his party that the accused is now not in a position to raise such a huge amount and despite his diligent and consistent efforts in that regard he has failed to raise the amount, etc. This Court had given sufficient time to the accused to make the stand as to whether he could voluntarily pay the above said amount of Rs.45 lakhs to the complainants. As the stand taken by the accused is that his financial position is standing in the way of his making the said payment, it is not right and proper for this Court to pass orders as prayed in these I.As., so as to direct the accused to pay the said amount of Rs.45 lakhs to the complainants and that too in these disposed Original Petitions. Moreover, passing such directions, so as to direct a private party to pay the said amount in proceedings filed under Article 227 of the Constitution of India on the ground that the said party had so agreed in the mediation agreement recorded by this Court is not right and proper. The powers under Article 227 of the Constitution of India are to be exercised mainly to ensure that the Subordinate Courts and Tribunals are kept in their bounds and to ensure overall visitorial powers of superintendence and supervision to ensure that public confidence in the Subordinate Courts and Tribunals is enhanced. [see Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 ]. In the light of these aspects, this Court is not in a position to grant the above said prayers in the above said I.As. 6. [see Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 ]. In the light of these aspects, this Court is not in a position to grant the above said prayers in the above said I.As. 6. Faced with the situation Sri.P.Shaijan Joseph, learned counsel appearing for the complainants/applicants in the I.As., would submit that this Court may clarify that the above said mediation agreement recorded by this Court in the common judgments disposing of the Original Petitions, namely, deemed to be a civil court decree, in view of the provisions contained in Sec.89(2)(c) of the Code of Civil Procedure as interpreted in paragraph 25 of the judgment of the Apex Court in Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Ltd. and others, reported in (2010) 8 SCC 24 and in the light of the dealing provision contained in Sec.21 of the Legal Services Authorities Act, 1987. Section 89 of the C.P.C. reads as follows : “89: Settlement of disputes outside the Court :- (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for— (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat ; or (d) mediation. (2) Where a dispute has been referred-- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.” In paragraph 25 of the judgment dated 26.7.2010 of the Apex Court in Civil Appeal No.6000 of 2010 rendered in the case in Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Ltd. & ors., reported in (2010) 8 SCC 24 , it was held as follows : '5. In view of the foregoing, it has to be concluded that proper interpretation of Section 89 of the Code requires two changes from a plain and literal reading of the section. Firstly, it is not necessary for the court, before referring the parties to an ADR process to formulate or reformulate the terms of a possible settlement. It is sufficient if the court merely describes the nature of dispute (in a sentence or two) and makes the reference. Secondly, the definitions of “judicial settlement” and “mediation” in clauses (c) and (d) of Section 89(2) shall have to be interchanged to correct the draftsman’s error. It is sufficient if the court merely describes the nature of dispute (in a sentence or two) and makes the reference. Secondly, the definitions of “judicial settlement” and “mediation” in clauses (c) and (d) of Section 89(2) shall have to be interchanged to correct the draftsman’s error. Clauses (c) and (d) of Section 89(2) of the Code will read as under when the two terms are interchanged: (c) for “mediation”, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for “judicial settlement”, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. The above changes made by interpretative process shall remain in force till the legislature corrects the mistakes, so that Section 89 is not rendered meaningless and infructuous.' Clause (c) of Section 89 (2) of C.P.C. reads as follows: “89: Settlement of disputes outside the Court :- (1) (2) Where a dispute has been referred-- xxx xxx xxx (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act.” It is thus urged by the complainants that with the consent of the parties, this Court had permitted them for approaching the mediation centre for settling the dispute. It is on the basis of this Court's orders permitting the parties, that the mediation agreement was arrived at between the parties, which has been recorded in the judgment of this Court in these Original Petitions. It is on the basis of this Court's orders permitting the parties, that the mediation agreement was arrived at between the parties, which has been recorded in the judgment of this Court in these Original Petitions. It is argued that since the mediation was thus ordered by this Court through Kerala State Mediation and Conciliation Centre, Ernakulam, attached to this Court, which is an institution for mediation working under the administrative control of this Court, the terms and conditions of the said mediation agreement dated 29.5.2017 passed by the mediation centre of this Court shall be deemed to be a decree of the Lok Adalath as per the provisions of the Legal Services Authorities Act. It is further contended that because of the said aspects as discernible from Sec.89(2) of the C.P.C., the said terms and conditions of the impugned agreement in these cases could be deemed to be a civil court's decree as per Sec.21 of the Legal Services Authorities Act and so held by this Court in N.D.Nair v. George Martin, reported in 2011 (2) KLT 23 and by the Apex Court in K.N.Govindan Kutty Menon v. C.D.Shaji, reported in (2012) 2 SCC 51 , etc. 7. In this regard, it is to be noted that the compromise in the instant case has been arrived at not through Lok Adalath as conceived in the provisions of the Legal Services Authorities Act, but, through a mediation centre authorised by this Court, which is regulated by the provisions contained in Sec.89 of the C.P.C., and by the provisions contained the Civil Procedure (Alternative Dispute Resolution) Rules, 2008, framed by this Court with the previous approval of the Government of Kerala under the enabling provisions contained in Sec.122 of the C.P.C. The said rules dated 7.3.2008 have been published in the Kerala Gazette No.13 dated 25.3.2008. 8. 8. Rule 2(c) of the above said Civil Procedure (Alternative Dispute Resolution) Rules, 2008, framed by this Court defines settlement by ' mediation' as follows: “Rule 2: Definitions (a) (b) (c) Settlement by 'Mediation' means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute, between the parties to the suit by applying the provisions of these Rules, in so far as they relate to mediation.” Rule 24 which deals with settlement agreement and Rule 25 which deals with the Court to fix a date for recording settlement and passing decree, provide as follows: “Rule 24: Settlement Agreement.- (1) Where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues the same shall be reduced to writing, verified and signed by the parties or their power of attorney holder. The signatures of the parties to such an agreement shall be attested by their respective counsel or by any of the authorities mentioned in Rule 27 of the Kerala Civil Rules of Practice. (2) The agreement of the parties so signed and attested shall be submitted to the mediator who shall, with a covering letter signed by him, forward the same to the Court in which to the suit is pending. (3) Where no agreement is arrived at between the parties, before the time limit stated in Rule 19 or where, the mediator is of the view that no settlement is possible, he shall report the same to the said Court in writing. Rule 25: Court to fix a date for recording settlement and passing decree.- (a) Within seven days of the receipt of any settlement, the Court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement, and the Court shall record the settlement, if it is lawful. (b) The Court shall then pass a decree in accordance with the settlement so recorded, if the settlement disposes of all the issues in the suit. (b) The Court shall then pass a decree in accordance with the settlement so recorded, if the settlement disposes of all the issues in the suit. (c) If the settlement disposes of only certain issues which are severable and if a decree could be passed to the extent of the settlement, the Court after recording the settlement on the date fixed for the same, may pass a decree straight away in accordance with the settlement on those issues which were settled without waiting for a decision of the Court on other issues which are not settled. If the issues settled are not severable the Court shall wait for the decision of the Court on other issues which are not settled. 9. This Court in the judgment in Sreelal v. Murali Menon, reported in 2014(3) KLT 536 , has dealt with a case where a mediation agreement was entered into between the complainant and accused for offence punishable under Sec.138 of the Negotiable Instruments Act and held that the benefit of Sec.21 of the Kerala Legal Services Authorities Act in respect of awards passed by the Lok Adalath in such compromise will not be applicable to a case where the compromise is arrived at between the complainant and accused for the said offence in the mediation centres, which are covered by the Civil Procedure (Alternative Dispute Resolution) Rules, 2008. This Court in the above said decision in Sreelal's case (supra), has also considered the effect of Sec.89 of the C.P.C., as well as the provisions in the Rules contained in Alternative Dispute Resolution Rules, 2008 framed by this Court as well as the decision of the Apex Court in Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Ltd. & ors., reported in (2010) 8 SCC 24 , K.N.Govindan Kutty Menon v. C.D.Shaji, reported in (2012) 2 SCC 51 , etc. It will be profitable to refer to paras 13 & 14 of the above said judgment in Sreelal v. Murali Menon, reported in 2014(3) KLT 536 , which read as follows: “13. It will be profitable to refer to paras 13 & 14 of the above said judgment in Sreelal v. Murali Menon, reported in 2014(3) KLT 536 , which read as follows: “13. Further, the counsel for the respondent relied on the decision reported in Govindankutty Menon v. Shaji (2011 (4) KLT 857 (SC)) and argued 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 S.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 S.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 before the Munsiff's Court for realisation of the amount and the Munsiff dismissed the execution petition on the ground that Criminal Court cannot pass a civil decree even in Adalath which was affirmed by this court but when that was challenged before the Hon'ble Supreme Court, the Hon'ble Supreme Court reversed the finding and held that by virtue of the deeming provision under S.21 of the Legal Services Authorities Act, even, in cases under S.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. 14. 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 S.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 Conciliation Act. Further, it is the cardinal principle in the mediation that whatever transpired in the mediation cannot be disclosed even before the court of law and that cannot be called upon to be produced as evidence as well as it will affect the confidentiality of the things transpired in the process of mediation. So the party who did not honour the settlement which was effected in the process of mediation, then, is not entitled to use the same as evidence before the court and agreement also cannot be marked in evidence as it has no legal effect unless it is accepted by the court and a decree is passed under S.89 r/w O.23 R.3 of the Code of Civil Procedure. That cannot be possible in a Criminal Court. .........................” This Court has specifically held that in case where there is a breach of mediation agreement entered into between the complainant and accused in a private criminal complaint in Sec.138 of the N.I.Act, then a decree cannot be passed under Sec.89 of the C.P.C., r/w. Order XXIII Rule 3 of the C.P.C., in the case of such a criminal proceedings pending before a criminal court of law. It has to be borne in mind that the plenary provisions of law contained in Sec.89 of the C.P.C., would regulate the civil proceedings before a civil court or such civil adjudicatory forum to which the C.P.C applies. It has to be borne in mind that the plenary provisions of law contained in Sec.89 of the C.P.C., would regulate the civil proceedings before a civil court or such civil adjudicatory forum to which the C.P.C applies. Moreover, it can be seen that in Rule 2(c) of the Civil Procedure (ADR) Rules framed by this Court makes it clear that settlement by mediation applies to disputes between the parties to a suit and Rule 24(1) of the said Rules would also constitute agreement, which has been entered into between the parties as to the issues in the suit, etc. Rule 25(b) empowers the civil court to pass a decree in accordance with the settlement to be recorded, if the settlement discloses all the issues in the suit. Therefore, the above said provisions contained in Sec.89 of the C.P.C., as well as the relevant provisions in the Civil Procedure (ADR) Rules would apply eminently to proceedings of civil nature pending before the civil court or other civil adjudicatory forum and it cannot be brought applicable to a criminal proceedings even if it is for an offence under Sec.138 of the N.I. Act, which is essentially a civil wrong which has been given legislative overtones of a criminal complaint. In contradistinction to mediation agreement of an authorised mediation centre in respect of an offence under Sec.138 of the N.I.Act, the effect of a compromise so arrived at for the very same offence in Lok Adalath is substantially different in view of the explicit provisions in the Legal Services Authorities Act made by the Parliament. It is relevant to note that Sec.2(aaa) of the Legal Services Authorities Act (Central Act 39 of 1987), defines “court” as follows: '2(aaa). “court” means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-Judicial functions.' Sec.2(a) defines “case” as follows: 'Sec.2(a): “Case” includes a suit or any proceedings before a court'. “court” means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-Judicial functions.' Sec.2(a) defines “case” as follows: 'Sec.2(a): “Case” includes a suit or any proceedings before a court'. Sec.21 of the Legal Services Authorities Act, which deals with award of Lok Adalath Act, provides as follows: “Sec.21: Award of Lok Adalat.- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-free paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870). (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.” It is in the light of the Lok Adalath award, that this Court in the decision in N.D.Nair v. George Martin, reported in 2011 (2) KLT 23 as well as the Apex Court in K.N.Govindan Kutty Menon v. C.D.Shaji, reported in (2012) 2 SCC 51 have held that even if the compromise arrived at by the Lok Adalath for an offence punishable under Sec.138 of the N.I.Act, then once the compromise agreement entered into between the parties as fructified in the Lok Adlath, will attain the nature and character of a deemed civil decree in view of the powers of the mandatory provisions under Sec.21 of the said Act and therefore in view of the said mandatory deeming provision, the criminal court becomes functuous officio and the compromise entered into between the parties as fructified in the Lok Adalath award is to be executed by treating the same as a deemed civil court decree. This position of law is mainly because of the above said provisions of law enacted by the Parliament in Legal Services Authorities Act, 1987. Whereas Sec.89 of the C.P.C., and the provisions in the A.D.R Rules framed by this Court do not envisage that the court as envisaged in those provisions would also be inclusive of criminal court. This position of law is mainly because of the above said provisions of law enacted by the Parliament in Legal Services Authorities Act, 1987. Whereas Sec.89 of the C.P.C., and the provisions in the A.D.R Rules framed by this Court do not envisage that the court as envisaged in those provisions would also be inclusive of criminal court. This is in contradistinction to the provisions contained in Sec.2(aaa) and 2(a) of the Legal Services Authorities Act, 1987. Sri.P.Shaijan Joseph, learned counsel for the complainants submitted that the view rendered by the learned Single Judge of this Court in Sreelal v. Murali Menon, reported in 2014(3) KLT 536 , about the effect of breach of a mediation agreement in a complaint for offence under Sec.138 of the N.I.Act does not reflect the correct legal position and that in view of the observations contained in para 25 of the judgment of the Apex Court in Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Ltd. & ors., reported in (2010) 8 SCC 24 , the said position of law laid down in Sreelal's case (supra), requires a re-consideration and more liberal and wider interpretation is required so as to give the benefit of the deemed civil court decree even to a mediation agreement arrived at between the parties in a private criminal complaint for offence punishable under Sec.138 of the N.I.Act, even if the said compromise has not been arrived at through Lok Adalath as envisaged in Legal Services Authorities Act. This Court in Sreelal's case (supra), has given cogent and proper reasonings for taking the considered view that a meditation agreement arrived at between the complainant and accused for offence under Sec.138 of the N.I.Act cannot get the benefit of deemed civil court's decree as envisaged in Sec.21 of the Legal Services Authorities Act, so long as the compromise is not arrived at through Lok Adalath process, which was fructified in to a Lok Adalath award as envisaged in Sec.21 of the Act. This Court is in full concurrence with the findings and reasonings of this Court in Sreelal's case (supra). This Court is in full concurrence with the findings and reasonings of this Court in Sreelal's case (supra). This is primarily in view of the fact that the provisions as in Sec.2(aaa) and Sec.(a) and Sec.21 of the Legal Services Authorities Act have not been engrafted by the competent legislature in respect of a mediation agreement as envisaged in the Civil Procedure (ADR) Rules, 2008, framed by this Court as essentially those Rules have been framed only under the enabling provisions as in Secs.89 and 122 of the C.P.C., which apply only to civil courts and other civil adjudicatory fora. Sri.P.Shaijan Joseph, learned counsel for the complainants would then urge that this Court may follow the view taken by the Division Bench of the Delhi High Court in the case Dayawati v. Yogesh Kumar Gosain, reported in [2017] 205 Comp Caw 231 (Delhi). In that regard, the learned counsel for the complainants would urge that it has been repeatedly held by the Apex Court that the offence under Sec.138 of the N.I.Act is essentially a civil wrong which has been given legislative overtones of a criminal proceedings and therefore though the trial is to be conducted by criminal court, this Court can take a liberal view that the provisions contained in Sec.89 of the C.P.C., and Civil Procedure (ADR) Rules would apply in respect of a mediation agreement as far as a complaint for offence under Sec.138 of the N.I.Act is concerned. The complainants has also placed reliance on the decision of the Apex Court in the case Damodar S.Prabhu v. Sayed Babalal, reported in AIR 2010 SC 1907 , wherein it was held that in case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Further the Apex Court in the case Kaushalya Devi v. Roopkishore, reported in AIR 2011 SC 2566 , has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones by virtue of the legislative intervention made by the Parliament in incorporating Chapter XVII of the N.I.Act. Further the Apex Court in the case Kaushalya Devi v. Roopkishore, reported in AIR 2011 SC 2566 , has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones by virtue of the legislative intervention made by the Parliament in incorporating Chapter XVII of the N.I.Act. A reading of the judgment of the Delhi High Court in Dayawati's case (supra) would make it clear that the Rules considered by the said Court in the afore cited decision is Rule 24 of the Mediation Rules, which is framed by the Delhi High Court under the enabling provisions contained in Sec.89(2) and Part IX of the C.P.C. Rule 24(1) and Rule 24(2) of the Mediation and Conciliation Rules provide as follows: “Rule 24: Settlement agreement.- (1) Where an agreement is reached between the parties in regard to all the issues in the suit or proceeding or some of the issues, the same shall be reduced to writing and signed by the parties or their constituted attorney. If any counsel has represented the parties, the conciliator/mediator may obtain his signature also on the settlement agreement. (2) The agreement of the parties so signed shall be submitted to the mediator/conciliator who shall, with a covering letter signed by him, forward the same to the court in which the suit or proceeding is pending.” It is seen from the Rules framed by the Delhi High Court that the language implied in Rule 24(1) and Rule 24(2) of the Rules framed by the Delhi High Court would relate not only for mediation agreement in regard to the issues in a suit but also to other proceedings. In the light of these aspects, this Court is of the considered view that the legal position settled by this Court in Sreelal v. Murali Menon, reported in 2014(3) KLT 536 , paras 14 & 15 thereof, does not require any reconsideration and as it lays down the correct legal position in that regard. In view of these aspects, this Court is not in a position to accept the above said alternative plea made by the petitioner in the I.As and accordingly, it is ordered that I.A.Nos.533, 535, 534 & 193 of 2018 filed in the above 4 Original Petitions will stand dismissed. 10. In view of these aspects, this Court is not in a position to accept the above said alternative plea made by the petitioner in the I.As and accordingly, it is ordered that I.A.Nos.533, 535, 534 & 193 of 2018 filed in the above 4 Original Petitions will stand dismissed. 10. Now the prayers in I.A.Nos.564, 562, 565 & 563 of 2018 filed in these 4 Original petitions for recalling of the impugned judgment dated 2.6.2017 rendered in these cases on the ground that the said judgment is vitiated by fraud is to be considered. 11. It is now well established that the power invested on this Court by virtue of the constitutional provisions in Article 226 of the Constitution of India is plenary in nature. It would also confer the inherent and intrinsic power to the High Courts to review judgments passed under the enabling provisions under Article 226 of the Constitution of India. In view of this legal position, this Court is prima facie of the view that the said position of law applicable in the matter of maintainability of review in proceedings under Article 226 of the Constitution of India should also equally apply to the proceedings, which are under Article 227 of the Constitution of India. The basic sources of power both under Articles 226 & 227 are drawn from the Constitution and the powers are plenary in nature. True that, the power conferred under Article 226 of the Constitution of India is for exercise of issue of certain prerogative writs whereas the power of Article 227 of the Constitution of India is conferment of jurisdiction for superintendence over all courts and Tribunal by the High Court. True that the provisions in Sec.5(i) of the Kerala High Court for intra-court appeal is confined only if the impugned judgment is one under Article 226 of the Constitution of India and such appellate remedy is not applicable to judgments of this Court issued in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. True that the provisions in Sec.5(i) of the Kerala High Court for intra-court appeal is confined only if the impugned judgment is one under Article 226 of the Constitution of India and such appellate remedy is not applicable to judgments of this Court issued in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Since the source of power under Articles 226 & 227 are drawn from the Constitution, this Court is of the prima facie view that the statutory bar engrafted in Sec.362 of the Cr.P.C prohibiting exercise of review jurisdiction by criminal courts after signing and rendering judgment of criminal court may not apply in the case of a judgment rendered by a High Court in exercise of the supervisory powers under Article 227 of the Constitution of India. The bar under Sec.362 of the Cr.P.C essentially applies to judgments and orders of criminal courts rendered in exercise of powers as conceived in the Code of Criminal Procedure or in other enactments dealing with the special criminal offences, etc. Therefore, prima facie, this Court is of the view that the bar contained in Sec.362 Cr.P.C may not apply in respect of review of judgments rendered by this Court under Article 227 of the Constitution of India even if it pertains to exercise of supervisory jurisdiction over criminal courts. However, there is no necessity for this Court to render any final opinion on the said issue as the limited prayers of the applicants in these I.As are to recall the judgment on the ground of fraud perpetrated by the accused. 12. The Apex Court in the decision in Vishnu Agarwal V. State of U.P. and another, reported in 2011 (14) SCC 813 = AIR 2011 SC 1232 = 2011 KHC 4158 has dealt with a case where a criminal revision petition was listed before the High Court of Allahabad on which day none had appeared on behalf of the revision petitioner though the Advocates for the respondents had appeared and the High Court had proceeded to consider and dispose of the revision petition on merits after hearing the available parties and without hearing the revision petitioner therein. Subsequently an application was moved by the revision petitioner therein before the High Court for recall of the impugned revisional order dated 2.9.2003 alleging that the case was shown in the computer list and not in the main list of the High Court and hence the learned counsel for the revision petitioner could not note the case and hence he did not appear. The High Court had allowed the said application to recall the order and the said order was challenged before the Apex Court in the above said proceedings. It was contended before the Apex Court that the order passed by the High Court in recalling the earlier order dated 2.9.2003, is illegal and ultravires inasmuch as it would amount to flagrant violation of the statutory bar engrafted in Sec.362 of the Cr.P.C. which mandates that once a judgment or order is signed, the criminal court cannot review or alter the same except for the limited purpose of correcting any clerical or arithmetical mistakes. The appellant before the Apex Court had also placed reliance on the judgment in Hari Singh Mann v. Harbhajan Singh Bajwa, reported in AIR 2001 SC 43 , paragraph 10 which dealt with the bar under Sec.362 of the Cr.P.C. The Apex Court in the afore cited judgment in Vishnu Agarwal’s case (supra) reported in [ 2011 (14) SCC 813 ] has held in paragraph 8 thereof that the bar in Sec.362 cannot be considered in a rigid and over technical manner so as to defeat the ends of justice and that the courts should not give its decision based only on the letter of the law and that if the decision is wholly unreasonable, injustice will follow and that the application filed by the respondent therein was not an application to review or modify the impugned order or judgment but was only to recall the impugned order so as to hear the matter afresh after affording a reasonable opportunity of being heard to the revision petitioner whose counsel had omitted to note the listing of the case. Their Lordships of the Apex Court in Vishnu Agarwal’s case (supra) had also placed reliance on the judgment in Asit Kumar Kar v. State of West Bengal and others, reported in 2009 (2) SCC 703 wherein the distinction between recall and review was considered and it was held that in review, the court considers on merits whether there is an error apparent on the face of the record. Whereas in a recall plea, the court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. In this view of the matter, it was held by the Apex Court in Vishnu Agarwal's case (supra) that the impugned order therein passed by the High Court recalling the order on the ground that the affected party was not heard so as to hear the matter afresh, does not suffer from any illegality or infirmity and that the impugned order passed by the High Court was thus confirmed and the appeal was accordingly dismissed. The substantial difference between a proceeding for review and for recall of the impugned order has also been dealt with by the Apex Court in the decision in Asit Kumar Kar v. State of West Bengal and others, reported in (2009) 2 SCC 703 = 2009 (1) KHC 645. In this regard it will also be profitable to refer to paragraphs 4 to 7 of the aforesaid decision in Asit Kumar v. State of West Bengal and others, reported in (2009) 2 SCC 703 , which read as follows : “4. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. In the seven-Judge Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak (1988) 2 SCC 602 : 1988 SCC (Cri) 372 it has been observed in para 55 thereof : (SCC p. 660) “55. ..... So also the violation of the principles of natural justice renders the act a nullity.” 5. One of the counsel relied upon another five-Judge Constitution Bench decision in Rupa Ashok Jurra v. Ashok Hurra (2002) 4 SCC 388 . ..... So also the violation of the principles of natural justice renders the act a nullity.” 5. One of the counsel relied upon another five-Judge Constitution Bench decision in Rupa Ashok Jurra v. Ashok Hurra (2002) 4 SCC 388 . It is true that in para 9 of the judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a party. 6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing heard to an affected party. 7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees Assn. v. Aghabendra Singh cancelling certain licenses was passed without giving an opportunity of hearing to the persons who had been granted licenses. In these circumstances, we recall the directions in para 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate court. The Writ Petition Petitions are disposed of with these directions.” 13. It is relevant to note that though the above said decision of the Apex Court in Asit Kumar Kar’s case (supra) is in relation to a proceeding under Article 226 of the Constitution of India, the conceptual difference between review and recall of impugned orders which has been dealt with therein has been applied by the Apex Court in criminal proceedings, as can be seen from a reading of paragraph 9 of Vishnu Agarwal’s case (supra). The Apex Court has again considered the scope of recall of orders on the ground of violation of principles of natural justice in the decision in State of Punjab v. Davinder Pal Singh Bhullar and others, reported in (2011) 14 SCC 770 and it will be profitable to refer to paragraph 46 thereof, which reads as follows : “46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/ alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob Ilahi 1970 Cri. LJ 378 (All), Deepak Thanwardas Balwani v. State of Maharashtra 1985 Cri.L.J. 23 (Bom.), Habu v. State of Rajasthan AIR 1987 Raj 83 , Swarth Mahto v. Dharmdeo Narain Singh reported in (1972) 2 SCC 273 : 1972 SCC (Cri.) 676, Makkapati Nagaswara Sastri v. S.S.Satyanarayan (1981) 1 SCC 62 : 1981 SCC (Cri.) 111, Asit Kumar Kar v. State of W.B. (2009) 2 SCC 703 : (2009) 1 SCC (Cri.) 851 : (2009) 1 SCC (L&S) 541 and Vishnu Agarwal v. State of U.P. (2011) 14 SCC 813 )” The above said dictum laid down by the Apex Court has been applied by this Court in the decision in Pushpangathan v. State of Kerala, reported in 2015 (3) KLT 105 . In that case, this Court had considered the petition filed by the accused seeking quashment of the impugned complaint against them. Thus the order was passed by this Court allowing the plea for quashment without hearing the respondent/complainant. In that case, this Court had considered the petition filed by the accused seeking quashment of the impugned complaint against them. Thus the order was passed by this Court allowing the plea for quashment without hearing the respondent/complainant. Later, the complainant had filed a Criminal Miscellaneous Application in that Criminal Miscellaneous Case praying to recall the said order on the ground that the complainant was not afforded a reasonable opportunity of being heard before the petition was allowed. In the affidavit filed in support of the said application, the Advocate Clerk of the respondent/complainant’s counsel had stated that the vakalath was filed on behalf of the complainant by showing the year of the case wrongly, even though the number of the case was correct and in these circumstances, the appearance of the respondent/complainant was not shown in the cause list. This Court after considering the afore cited judgments in the decisions as in Asit Kumar Kar v. State of West Bengal, (supra) and Davinder Pal Singh Bullar’s case (supra), held that there cannot be any quarrel on the proposition that the bar created under Section 362 of the Cr.P.C. has to be respected. But the concepts of recall, review and/or alteration are to be distinguished clearly and the alteration and/or review is prohibited by Section 362 of the Cr.P.C. which presupposes the continuance of the order under challenge and effectuation of the same with some changes in it, but if a party seeks the prayer to recall the order, he has to show the legal reasons thereof for challenging its existence and convince the court that the order complained of shall not be allowed to continue or operate. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position or to a stage anterior to the passing of the impugned order or judgment in the matter and that conceptually, review/alteration is done while the order is in existence or force. The exercise undertaken in a review/alteration is to closely examine the order sought to be reviewed so as to find out any illegality or impropriety and for doing so, the existence of the judgment or order must be recognized. The exercise undertaken in a review/alteration is to closely examine the order sought to be reviewed so as to find out any illegality or impropriety and for doing so, the existence of the judgment or order must be recognized. When a judgment or a final order is recalled for valid reasons, the resultant effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed in the commencement of the proceedings. In this view of the matter this Court categorically held that the bar under Section 362 of the Cr.P.C does not affect in any manner the power of this Court to recall a judgment or order, if legal grounds are properly established by the complaining party in the light of the legal principles laid down by the Apex Court in the afore cited judgments. Accordingly, this Court found that the complaint made by the applicant therein that he was not afforded a reasonable opportunity of being heard before the impugned order was passed, is tenable and that the interest of justice requires that the order is recalled and in that view of the matter the impugned order therein was recalled and the matter was posted for disposal afresh after hearing all the parties concerned. It will be profitable to refer to paragraph 16 of the decision of this Court in Pushpangathan v. State of Kerala, reported in 2015 (3) KLT 105 , which reads as follows : “16. There cannot be any quarrel on the proposition that the bar created under S.362 Cr. P.C. has to be respected. But the concepts of recall, review and/or alteration are to be distinguished clearly. If we understand the said terms correctly, there will not be any difficulty to resolve the issue. Alteration and/or review prohibited by S.362 Cr.P.C. presupposes the continuance of the order under challenge and effectuation of the same with some changes in it. If a party wants to seek the indulgence of court to recall an order, he has to show a legal reason for challenging its existence and convince the court that the order complained of shall not be allowed to continue or operate. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position; i.e., to a stage anterior to passing any judgment or final order in the matter. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position; i.e., to a stage anterior to passing any judgment or final order in the matter. Conceptually, review/alteration is done while the order is in existence or force. The exercise undertaken in a review/alteration is to closely examine the order sought to be reviewed so as to find out any illegality or impropriety. For doing so, the existence of the judgment or order must be recognized. When a judgment or a final order is recalled for valid reasons, the resultant legal effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed at the commencement of the proceedings. Therefore, I am of the view that S.362 Cr.P.C. does not affect the power of this Court to recall a judgment or order, if legal grounds are properly established by the party complaining.” Therefore, it is now well settled by the aforestated judgments of the Apex Court as well as that of this Court that conceptually and in substance there is a distinction between review and recall and that what is prohibited by the mandate of Section 362 of the Cr.P.C. is review or alteration of the judgment or order and that this Court by virtue of the special powers conferred under Section 482 of the Cr.P.C., could recall an order for the grounds as enumerated in the afore cited judgments and where this Court is convinced that the party could not take part in the hearing process and that there was flagrant violation of principles of natural justice, etc., then this Court could invoke its jurisdiction to recall the impugned order so as to dispose of the matter afresh after hearing all the affected parties concerned. 14. It is by now well established that there is a fine discussion between the power to review the judgment and the power to recall the judgment and the power to recall a judgment could be appropriately exercised by the High Court even in respect of judgments and orders passed under the enabling provisions contained in Sec.482 of the Cr.P.C. The grounds for recalling such judgments would be on the basis of not hearing the affected party or that the impugned order has been obtained on the basis of fraud, etc. It has been held by the Apex Court in the judgment in R.Rajeswari v. H.N.Jagadish, reported in (2008) 4 SCC 82 , while considering the interplay between the provisions under Secs.362 & 482 of the Cr.P.C, that the exercise of jurisdiction under Sec.482 of the Cr.P.C would be warranted only in some rare cases so as to recall the judgment where the High Court may do so, when a judgment has been obtained by practising fraud and in such a situation the specific statutory powers under Sec.362 of the Cr.P.C will not affect the powers of High court conferred under Sec.482 of the Cr.P.C for recalling the judgment on the ground of fraud, etc. Therefore, the said legal position in the aforesaid judgment envisaging recalling of judgments even by taking recourse to the powers conferred under Sec.482 of the Cr.P.C would apply with equal vigor and force where a impugned judgment issued under Article 227 is sought to be recalled on the ground of fraud, non-hearing, etc. 15. Going by the facts of this case, the complainant and accused had earlier submitted before this Court that they are intending to settle the disputes through the mediation centre Ernakulam attached to this Court and it is on this basis, that this Court passed orders during the pendency of the Original Petitions that the parties are referred for such mediatory efforts. Before the mediator at the mediation centre, the accused has voluntarily taken the stand that he would pay total amount of Rs.45 lakhs to the respective complainants for discharging the liability wherein the total amount involved in the dishonoured cheques concerned comes to Rs.50,10,000/- The said mediation agreement has been so entered between the parties voluntarily on 29.5.2017. It is on the basis of such voluntarily entering into the mediation agreement dated 29.5.2017 that both the parties had submitted before this Court that this Court may record the said mediation agreement and may finally dispose of the Original Petitions (Crl) with the aforementioned directions and accordingly this Court had finally disposed of the Original Petitions (Crl.) as per the impugned common judgment dated 2.6.2017. It is not in dispute that thereafter the accused has never paid a single paise towards the liability to the complainants in these cases even though he had agreed to pay Rs.45 lakhs to them. It is not in dispute that thereafter the accused has never paid a single paise towards the liability to the complainants in these cases even though he had agreed to pay Rs.45 lakhs to them. Even as of today, the accused has not paid a single paise to the complainants in that regard. Therefore, the submission raised by Sri.P.Shaijan Joseph, learned counsel appearing for the complainants that the accused had made said submission before the mediator as well as before this Court knowing fully well that he will not honour the said financial commitment and therefore the said submission made before the mediator and before this Court as recorded in the mediation agreement as well as in the judgment of this Court are thus vitiated by fraud and misrepresentation, etc., appears to be tenable and sustainable. If the impugned judgment is not recalled, then the complainants can at best file civil suits for recovery of moneys due to them and that too, after paying court fees. This would certainly be unjust and unfair and would question the very credibility and integrity of the mediation process, undertaken through authorised mediation centre of this Court. Therefore, this Court is not powerless even though these Original Petitions were disposed of as per the impugned judgments. Going by the legal principles laid down by the Apex Court in the afore cited decisions, this Court is invested with the power to recall such judgments if it is clearly shown that it is vitiated by fraud and misrepresentation by one of the parties thereto. Since not even a single paise has been paid by the accused to the complainants, it is only to be held that the accused had made submission that he would pay Rs.45 lakhs to the complainants both before the mediation centre as well as this Court as recorded in this Court's judgment knowing fully well that he would not honour such payments. Therefore, the above said impugned judgment has been secured on account of the fraud played by the accused. In the light of these aspects, this Court is constrained to recall the impugned common judgment dated 2.6.2017 rendered in these 4 Original Petitions (Crl) and it is so accordingly ordered. With these observations and directions, I.A.Nos.564, 562, 565 & 563 of 2018 will stand allowed.