Anandan P. v. Maijo and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927** **OP(Crl.).No. 367 of 2017 ()** **----------------------------** **ST 638/2015 OF JUDICIAL FIRST CLASS MAGISTRATES COURT -II, KOCHI --------------** ## **PETITIONER/COMPLAINANT:** **------------------------------------------** **ANANDAN. P.,** **S/O. PADMANABHA MENON, PANAMITTATH HOUSE, CHERANELLORE, ERNAKULAM DISTRICT - 682 034** **BY ADVS.SRI.T.K.SHAJAHAN SMT.ACHU SUBHA ABRAHAM SMT.ANN MALU ALBI SRI.THOMAS T.VARGHESE** ## **RESPONDENT(S)/ACCUSED AND STATE:** **------------------------------------------------------------** **1. MAIJO., S/O. K.J. AUGUSTINE,** **KOICHANAMPARAMBIL, OPPOSITE GOVERNMENT, MAHARAJAS TALUK HOSPITAL, THOPPUMPADY, KOCHI- 682 005.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## **R2 BY GOVERNMENT PLEADER SRI. SAIGI JACOB PALATTY** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **OP(Crl.).No. 367 of 2017 ()** **----------------------------** ## **APPENDIX** ## **-----------------** ## **PETITIONERS EXHIBITS** **----------------------------------------** **EXT.P1 TRUE COPY OF THE COMPLAINT IN S.T.NO. 638/2015 IN THE JFCMC NO.II KOCHI DATED 20.05.2014** - **EXT.P2 TRUE COPY OF THE AWARD PASSED BY THE NATIONAL LOK ADALATH DATED 12.11.2016** - **EXT.P3 TRUE COPY OF THE CRL.M.P.NO. 1101/2017 OF THE JFCMC NO. II, KOCHI DATED 16.03.2017** - **EXT.P4 TRUE COPY OF THE ORDER IN CRL. M.P. NO. 1101/2017 OF THE JFCMC NO. II KOCHI DATED 18.04.017** - **EXT.P5 TRUE COPY OF THE PROCEEDINGS SHEET IN S.T.NO. 638/2015 OF THE JFCMC NO.II KOCHI** - **EXT.P6 TRUE COPY OF THE ORDER DATED 14.11.2016 IN S.T. NO. 638/2015 OF THE JFCMC NO. 11, KOCHI.** ## **RESPONDENTS EXHIBITS NIL** **------------------------------------** **/TRUE COPY/** **PA TO JUDGE** ## **sdr/-** **“C.R”** ## ALEXANDER THOMAS, J. ----------------------------O.P(Crl).No.367 Of 2017 --------------------------------- Dated this the 22nd day of August, 2017. ## J U D G M E N T The petitioner herein is the complainant in S.T.No.638/2015 on the file of the Judicial First Class Magistrate Court-II, Kochi, wherein the 1[st] respondent herein has been arrayed as accused for the offence punishable under Sec.138 of the N.I. Act. The dishonoured cheque dated 5.2.2014 is for Rs.1 lakh. At the request of both sides, the trial court had referred the parties for resolution of the disputes through National Lok Adalat constituted under the provisions under the Legal Services Authorities Act, 1987, and thereupon a settlement was reached between the parties on condition that if the accused pays the total amount of Rs.95,000/- to the complainant on or before 15.1.2017, then the complainant will withdraw the complaint. Further it was provided that in the event of the con-compliance of the said condition to pay of Rs.95,000/- on or before 15.1.2017, the complainant will be at liberty to proceed with the complaint. On the basis of these terms and conditions the Adalath had closed the case in the National Lok Adalath held on 12.11.2016 in the premises of the Judicial First Class ::2:: O.P(Crl).No.367 Of 2017 Magistrate Court-II, Kochi, and passed the following award as per Ext.P-2 (see page 10 of the paper book) which reads as follows: ## “AWARD The dispute between the parties having come up for determination at the Lok Adalath and the parties having settled the matter and filed a compounding application/compromise, the following award is passed in terms of the compromise. Both parties and counsel are present. Matter is settled. Accused agreed to pay Rs.95,000/- (Rupees Ninety five thousand only) as full and final settlement in respect of the entire transactions between the parties on or before 15.1.2017. Complainant agrees to withdraw the case on receipt of the said amount as full and final settlement. In the event of non compliance, the complainant is at liberty to proceed with the case.” 2. Though the time limit for compliance on the part of the accused to pay the amount of Rs.95,000/- was only up to 15.1.2017, it is stated that the accused has not cared to pay the said amount within the said time limit or even thereafter. Thereupon the petitioner has filed Ext.P-3 memo dated 16.3.2017 before the trial court concerned pointing put that the accused had not paid the amount in terms of the Lok Adalath settlement and the case may be put up before the court to enable the complainant to proceed further with the complaint in accordance with law. In response to the matter in Ext.P-3 memo dated 16.3.2017, the trial court has passed Ext.P-4 order dated 18.4.2017 wherein it has been stated that on 14.11.2016, the case was closed by the trial court after recording the settlement in Ext.P-2 National Lok Adalath Award and that therefore, there is no question of resurrecting ::3:: O.P(Crl).No.367 Of 2017 the complaint. On this basis the prayer made in Ext.P-3 memo was rejected by the trial court as per Ext.P-4 order dated 18.4.2017. Ext.P-5 is the proceeding sheet of the trial court which would show that on 17.10.2016 the court had noted that there is chance of settlement and has referred the parties to Adalat on 12.11.2016. It is on 12.11.2016 that National Lok Adalat award has been passed as per Ext.P-2 award dated 12.11.2016. A perusal of the proceedings sheet would show that thereafter there was no posting of the case on 14.11.2016 before the trial court and the matter has been suo motu posted by the trial court who proceeded to pass an order as “settled in Adalath. Award passed. Case closed”. Ext.P-6 dated 14.11.2016 is the certified copy of the order passed by the trial court on 14.11.2016 (which is referred to in Ext.P-5 as well). The prayer of the petitioner in this Original Petition filed under Article 227 of the Constitution of India is for setting aside the impugned Ext.P-6 order dated 14.11.2016 and Ext.P-4 order dated 18.4.2017 and for a direction to the trial court to proceed further with the complaint in accordance with law as the accused has not fulfilled the agreed terms and conditions to pay the agreed amount of Rs.95,000/- within the stipulated time limit. 3. Though notice has been duly served on R-1 (accused) there ::4:: O.P(Crl).No.367 Of 2017 is no appearance for that party. 4. Heard Sri.Thomas T.Varghese, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 5. The main point to be decided in this petition is as to the legality and correctness of the impugned Ext.P-6 order dated 14.11.2016 and the consequential order passed as Ext.P-4 dated 18.4.2017. 6. It is not in dispute, as can be seen from the proceeding sheet at Ext.P-5 that on 17.10.2016, the trial court has referred the parties for resolution of the disputes to the Adalath to be held on 12.11.2016. The National Lok Adalath was held on 12.11.2016 in the premises of the trial court and therein both parties have agreed to settle their disputes and subject to the condition that the accused should pay an amount of Rs.95,000/- as full and final settlement of the entire transaction between the complainant and accused on or before 15.1.2017 and the complainant had agreed to withdraw the complaint on receipt of the said amount. Further it was clearly stated that in the event of the non-compliance, the complainant will be at liberty to proceed with the case. This can be seen from a perusal of Ext.P-2 order ::5:: O.P(Crl).No.367 Of 2017 which has been quoted hereinabove. It is also not in dispute that the accused has not cared to pay the agreed amount of Rs.95,000/- within the stipulated time limit of 15.1.2017 or even thereafter. Therefore, going by the explicit terms and conditions in Ext.P-2 award, the complainant is at liberty to proceed further with the complaint as the accused has not bothered to pay the agreed amount of Rs.95,000/within the stipulated time limit. However, without any separate posting in that regard, the trial court seems to have suo motu taken up the matter and has noted the Lok Adalat Award and thus closed the case. It appears that the trial court has passed the order dated 14.11.2016 at Ext.P-6 without giving any opportunity of being heard to the complainant. That apart, going by the explicit terms and conditions in Ext.P-2 award, such an order closing the complaint could have been passed by the trial court only after the complainant had made it clear to the court that he is not proposing to exercise his option to proceed further with the complaint. 7. Going by the explicit and categorical terms and conditions of Ext.P-2 award, the complainant has the option to proceed further with the complaint due to non-receipt of the agreed compensation within the agreed time limit. He could thus proceed with the complaint ::6:: O.P(Crl).No.367 Of 2017 in such contingency and if he does not so choose to exercise his option to proceed further with the criminal complaint before the trial court within a reasonable time, then he could opt to treat the award as a deemed executable decree in terms of Sec.21 of the Legal Services Authorities Act. But the petitioner in a case like the present one, cannot choose both the options and he has to elect one of the two options. The situation would have been entirely different, if there was no clause in the award to enable the complainant to proceed further with his complaint due to non receipt of the agreed compensation amount in which case, the award could have been executed only as a deemed executable decree. Therefore, the impugned Ext.P-6 order dated 14.11.2016 is illegal and ultravires on account of reasons more than one. Firstly, the same has been passed without giving an opportunity of being heard to the complainant. Secondly, so long as the trial court is not convinced that the accused has paid the agreed amount of Rs.95,000/- within the stipulated time of Ext.P-2 award, there is no question of unilaterally closing the complaint and further the trial court has no jurisdiction to unilaterally close the complaint, without consent in that regard of the complainant, going by the explicit terms and conditions in Ext.P-2 award. If the condition in Ext.P-2 award granting ::7:: O.P(Crl).No.367 Of 2017 option to the complainant to proceed further with the complaint on non-receipt of amount from the accused had not been incorporated in Ext.P-2 award, then certainly the award could have been treated only as a deemed decree which could be executed in terms of Sec.21 of the Legal Services Authorities Act, 1987 as held by the Apex Court in K.N.Govindan Kutty Menon v. C.D.Shaji reported in (2012) 2 SCC 51. In the instant case, such a contingency does not arise as the complainant has been given the explicit right and option to proceed further with the complaint if he does not pay the agreed amount within the time limit. Therefore, there is no question of the trial court unilaterally closing the complaint without the consent of the complainant and thus depriving the precious right conferred on the complainant in terms of Ext.P-2 award for proceeding further with the complaint due to non-receipt of the agreed amount from the accused. Therefore, the impugned Exts.P-6 & P-4 orders are patently illegal and ultravires. In this view of the matter, the impugned Ext.P-6 order dated 14.11.2016 and resultantly Ext.P-4 order dated 18.4.2017 are set aside. The complaint in S.T.No.638/2015 will stand restored to the file of the Judicial First Class Magistrate Court –II, Kochi. ::8:: O.P(Crl).No.367 Of 2017 8. The complainant and the learned counsel for the complainant will appear at 11:00 a.m. on 7.10.2017 before the trial court, on which day that court will proceed further with the complaint in accordance with law. Having regard to the fact that the complaint has been instituted in the year 2015, the trial court should take all the endeavours possible under the circumstances to ensure that the trial is completed without much delay at any rate, within a period of 4-5 months from the date of appearance of the complainant as stated above. With these observations and directions the aforecaptioned Original Petition (Criminal) will stand finally disposed of. ALEXANDER THOMAS, Judge. bkn/-