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2018 DIGILAW 867 (KAR)

Venkatachalapathy v. Harish Kumar V. L.

2018-08-08

JOHN MICHAEL CUNHA

body2018
JUDGMENT : John Michael Cunha, J. This petition is filed under Article 227 of the Constitution of India r/w Section 482 of Cr.P.C. seeking to quash the award dated 14.10.2017 (Annexure-'A') in C.C. No. 25663/2016 passed by the XIII Addl. Chief Metropolitan Magistrate, at Bengaluru . 2. Heard learned counsel for the petitioner and learned counsel for the respondent. Perused the records. 3. The respondent herein initiated proceedings against the petitioner herein (hereinafter referred to as "accused") for dishonour of cheque issued by the petitioner under Section 138 of the Negotiable Instrument Act. After closure of the evidence, accused was examined under Section 313 of Cr.P.C. At that stage, the parties moved a Joint Memo before the XIII Addl. ACMM, at Bengaluru. 4. The Joint Memo reads as follows: "We the Complainant and accused submit that we settled the subject matter in the above cases amicably. Accordingly to the settlement arised, accused has agreed to pay a sum of Rs. 12,00,000/- (Rupees Twelve Lakhs Only) to the complainant by way of D.D. in Three (3) installments as follows: 1. 1st Installment by way of D.D. on 23.10.2017 for a sum of Rs. 4,00,000/-(Rupees Four Lakhs Only). 2. 2nd Installment by way of D.D. on 25.11.2017 for a sum of Rs. 4,00,000/-(Rupees Four Lakhs Only). 3. 3rd Installment by way of D.D. on 20.12.2017 for a sum of Rs. 4,00,000/-(Rupees Four Lakhs Only). Further complainant submit that, if the accused fails/defaults to pay the agreed amount through D.D. as mentioned above, the Complainant has the liberty to approach this Hon'ble Court to proceed with the above said case. 4. It is submitted that, the complainant and accused have agreed for the same. Hence, this Memo. Wherefore, the Complainant and Accused pray that this Hon'ble Court may be pleased to take this memo on record and pass necessary order, in the interest of justice and equity. Sd/- Advocate for Complainant Sd/- Complainant Sd/- Advocate for Accused Sd/- Accused BENGALURU DATE: 06/10/2017 4. The order sheet dated 6.10.2017 reads as under: Complainant and accused present and their respective counsel present and identified them. Complainant and accused intend to settle the matter and hence they filed joint memo signed by themselves and their respective counsel. Terms and condition of joint memo read over and explained to complainant and accused. Both of them have agreed for the terms and conditions of the joint memo. Complainant and accused intend to settle the matter and hence they filed joint memo signed by themselves and their respective counsel. Terms and condition of joint memo read over and explained to complainant and accused. Both of them have agreed for the terms and conditions of the joint memo. Matter refer to Lok-Adalath. 5. Based on the above order, matter was referred to Lok- Adalat and an award came to be passed by the Lok-Adalat vide Annexure-'A'. As per the said award, learned Magistrate closed the proceedings with the following order dated 04.12.2017 which reads as under: Case is called at Lok Adalath. Complainant, accused and their counsels present. Complainant and accused filed Joint Memo reporting settlement in between them as per the terms and conditions of the Joint memo. Contents of the Joint memo read over and explained to the parties and they have agreed for the terms and condition. As per the Joint memo, the accused has agreed to pay Rs. 12,00,000/- as full and final settlements and agree to pay the above said amount to the Complainant in three(3) monthly installments. 1. 1st Installment by way of D.D. On 23.10.2017 for a sum of Rs. 4,00,000/-. 2. 2nd Installment by way of D.D. on 25.11.2017 for a sum of Rs. 4,00,000/-. 3. 3rd Installment by way of D.D. on 20.12.2017 for a sum of Rs. 4,00,000/-. The said terms of settlement are voluntary one. Hence, the Joint memo filed by the Complainant and accused is hereby accepted. Draw award accordingly. Call on for 1st installment on: 23.10.2017. Sd/- 14.10. (Judicial Conciliator). Sd/- Conciliator 6. Learned counsel for the petitioner at the outset submitted that the award said to have been passed by the Lok Adalat does not contain signatures of the conciliator. There is nothing on record to indicate that either of the parties appeared before the Lok Adalat on 14.10.2017. The petitioner/accused did not agree to the terms of the award. Hence, the impugned award is liable to be set aside. 7. In view of the said submission, by order dated 23.07.2018, the Member Secretary Legal Services Authority Lok Adalat, Bengaluru, was directed to produce the proof with regard to the constitution of the Lok Adalat on 14.10.2017 and the attendance of the respective parties before the Lok Adalat on that day. 7. In view of the said submission, by order dated 23.07.2018, the Member Secretary Legal Services Authority Lok Adalat, Bengaluru, was directed to produce the proof with regard to the constitution of the Lok Adalat on 14.10.2017 and the attendance of the respective parties before the Lok Adalat on that day. In response, the Member Secretary of the District Legal Services Authority, Bengaluru Urban, has sent a report on 06.08.2018. Para No.4 of the said report reads as under: "4. The order sheet in CC no.25663/2016 discloses that on 14/10/2017, the judicial conciliator and non judicial conciliator who were present in the Lok Adalat accepted the joint memo and recorded the compromise as if the complainant and accused and their counsels were present. But, the complainant and accused and respective counsels have not signed in the order sheet on 14/10/2017 for having present before Lok Adalat." 8. The above report, therefore, clearly indicates that neither the petitioner nor respondent or their respective counsels appeared before the Lok Adalat. Therefore, the contention urged by the learned counsel for the petitioner that he did not agree to any of the terms of the settlement before the Lok Adalat requires to be accepted. 9. Learned counsel for the respondent, however has strongly opposed to quash the award contending that on the submission of the Joint memo, learned Magistrate had read over the same and has clearly recorded in the order sheet dated 06.10.2017 that both parties have agreed for the terms and conditions of the said Joint memo and acknowledgement thereof. The petitioner, respondent and their counsel have signed the order sheet and therefore, petitioner cannot be allowed to retract from the said joint memo. 10. In appreciating this contention, it is relevant to note that the impugned award has been passed by the Lok-Adalat and not by the learned Magistrate. If, infact, the learned Magistrate was satisfied about the genuineness of the compromise arrived at by the parties as evidenced in the Joint memo, there was no reason for the learned Magistrate to refer the parties to the Lok Adalat. The parties having been referred to the Lok Adalat, the conciliators were required to ensure the presence of the parties and could have passed the award only on satisfying that the parties have mutually resolved their disputes and have agreed to the terms of the Joint memo. The parties having been referred to the Lok Adalat, the conciliators were required to ensure the presence of the parties and could have passed the award only on satisfying that the parties have mutually resolved their disputes and have agreed to the terms of the Joint memo. But, as already stated above, the records speak otherwise. Therefore, contention of the learned counsel for the respondent that the petitioner having acknowledged the contents of the Joint memo is not entitled to resile there from cannot be a ground to sustain the award passed by the Lok Adalat. 11. The procedure adopted by the learned Magistrate is highly deprecable. If, infact there was genuine settlement between the parties, there was absolutely no necessity for the learned Magistrate to refer the parties to Lok Adalat. In this context, it may be apt to refer to the caustic remark made by the Hon'ble Supreme Court in the case of M.P. State Legal Services Authority referred above wherein the Hon'ble Supreme Court has observed as under:- 17. In the first instance, we do not understand as to why the matter was sent to Lok Adalat when the parties had settled the matter between themselves and application to this effect was filed in the Court. In such a situation, the Court could have passed the order itself, instead of relegating the matter to the Lok Adalat. We have ourselves highlighted the importance and significance of the institution of Lok Adalat. We would be failing in our duty if we do not mention that, of late, there is some criticism as well which, inter alia, relates to the manner in which cases are posted before the Lok Adalats. We have to devise the methods to ensure that faith in the system is maintained as in the holistic terms access to justice is achieved through this system. We, therefore, deprecate this tendency of referring even those matters to the Lok Adalat which have already been settled. This tendency of sending settled matters to the Lok Adalats just to inflate the figures of decision/settlement therein for statistical purposes is not a healthy practice. We are also not oblivious of the criticism from the lawyers, intelligentsia and general public in adopting this kind of methodology for window-dressing and showing lucrative outcome of particular Lok Adalats. 12. This tendency of sending settled matters to the Lok Adalats just to inflate the figures of decision/settlement therein for statistical purposes is not a healthy practice. We are also not oblivious of the criticism from the lawyers, intelligentsia and general public in adopting this kind of methodology for window-dressing and showing lucrative outcome of particular Lok Adalats. 12. Even this Court had an occasion to consider one such similar instance in the case of Smt. Akkubai vs. Shri Venkatrao & Others, (2014) ILR(Kar) 2051. Paragraph 11 of the said judgment is worth reproducing. It reads as under:- 11. I really wonder, whether the Learned Judge who has entertained this matter was aware of the elementary aspects of judicial functioning and the Lok Adalath. A common order-sheet cannot be maintained by the Court as well as the Lok Adalath. A court cannot be converted into a Lok Adalath. In the order-sheet maintained by the Court, a portion of the proceedings is referable to the Court proceedings and another portion refers to the proceedings of Lok Adalath. The Conciliator has no place inside the Court. The very object of accepting this Lok Adalath as an alternative mode of resolution of dispute is that, all matters do not need adjudication. The matter which could be resolved by persuasion, negotiation and understanding should be taken out of adjudication process and should be resolved by means of Lok Adalath satisfactorily, so that the cases are disposed of expeditiously and the Courts will be saving the time of adjudicatory process, and they can utilize that time which is saved, in adjudicating the cases. If on the day the plaint is presented, the parties are also present before the Court, they are ready with the compromise petition and when they are filing an application under Order 23 Rule 3 CPC, when they are admitting the terms of the compromise and execution of the terms and condition, then the Court before which it is presented, is the competent Court to record the compromise and dispose of the suit in terms of the compromise. The question of referring the said dispute to the Lok Adalath would notarise. If it is referred, it is a farce. If this is accepted and encouraged, both the judicial system and this alternative dispute resolution mechanism gets a bad name and would be subjected to ridicule in the eyes of public. The question of referring the said dispute to the Lok Adalath would notarise. If it is referred, it is a farce. If this is accepted and encouraged, both the judicial system and this alternative dispute resolution mechanism gets a bad name and would be subjected to ridicule in the eyes of public. All persons who are indulging in the process would be doing great injustice and disservice to the judicial system. They are not conscious of their action and its repercussions and the image of the Judiciary, which would create in the mind of the public. That is not the object with which neither Legal Services Authority Act of 1987 is passed by the Parliament providing for the institution of Lok Adalath nor Section 89 was introduced by the Parliament amending CPC. The essence of these provisions is neither understood by the Learned Judge nor by the Learned Counsels who are appearing for the parties. 13. It is really unfortunate that the learned Magistrate has given a go bye to these solitary guidelines laid down by the Hon'ble Supreme Court and the High Court and has acted contrary to the rules and procedure governing the subject thereby causing prejudice to the litigants as well as to the cause of justice. Needless to say that on account of the approach adopted by the learned Magistrate, the respondent has been denied the benefit of the said Joint memo. Nonetheless, the impugned award having been passed without the concurrence of the parties, there is no other alternative than to set aside the impugned award. 14. Accordingly, the award passed by the Lok Adalat dated 14.10.2017 in C.C. No. 25663/2016 vide Annexure-'A' is hereby set aside and the consequent proceedings of the learned Magistrate in C.C.No.25663/2016 are restored to file. Parties are directed to appear before the learned Magistrate on 27.08.2018 without any further notice and take further orders from this Court. It is made clear that the Joint memo filed by the parties and the consequent order passed by the learned Magistrate on 06.10.2017 stands intact. Petition stands disposed of in terms of the above order.