Manoj Paul v Basheer K.M and State of Kerala (OP(Crl).No. 218 of 2017 (Q))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940** ## **OP(Crl.).No. 218 of 2017 (Q)** **----------------------------ST.NO. 4254/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY CRIME NO. 3473/2016 OF ALUVA POLICE STATION, ERNAKULAM DISTRICT** **-------------------** ## **PETITIONER:** - **-------------------** **MANOJ PAUL, AGED 46, S/O.PAUL THOMAS, PARACKAL HOUSE, CHANGANACHERRY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT.** ## **BY ADV. SRI.SANIL JOSE** **RESPONDENTS:** **------------------------** **1. BASHEER K.M, S/O.MUHAMMEDKUTTY, KANNOTH HOUSE, CHANGAMPUZHA NAGAR P.O., THRIKKAKARA, UNICHIRA-682 033** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031** **R1 BY ADVS. SRI.P.SHAIJAN JOSEPH SRI.K.K.AJI KUMAR** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 27/4/2018** ## **OP(Crl.).No. 218 of 2017 (Q) ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **EXHIBIT P1 TRUE PHOTOCOPY OF THE COMPLAINT FILED IN S.T.NO.4254/2016, JFCM, KALAMASSERY** - **EXHIBIT P2 TRUE PHOTOCOPY OF THE REPLY NOTICE SENT BY THE PETITIONER'S ADVOCATE ANIMON JOSEPH DATED 15.10.2016** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE RURAL SP, ALUVA, DATED NIL** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE FIR NO.3473/2016, DATED 13.9.2016, ALUVA POLICE STATION** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------------------------** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts 27/4/2018** ## ALEXANDER THOMAS, J. ----------------------------- O.P(Crl).Nos.168, 218, 219 & 220 Of 2017 --------------------------------- Dated this the 10th day of April, 2018. ## J U D G M E N T The prayers in O.P(Crl).No.168/2017 are as follows: - “(a) An order directing the JFCM, Kakkanad to keep in abeyance all further proceedings in S.T.No.5111/2016 on its file; and - (b) Such other orders as are deemed fit and proper in the facts and the circumstances of the case.” ## 2. The prayers in O.P(Crl).No.218/2017 are as follows: - “(a) An order directing the JFCM, Kalamassery to keep in abeyance all further proceedings in S.T.No.4254/2016 on its file; and - (b) Such other orders as are deemed fit and proper in the facts and the circumstances of the case.” 3. The prayers in O.P(Crl).No.219/2017 are as follows: - “(a) An order directing the JFCM, Kalamassery to keep in abeyance all further proceedings in S.T.No.4187/2016 on its file; and - (b) Such other orders as are deemed fit and proper in the facts and the circumstances of the case.” 4. The prayers in O.P(Crl).No.220/2017 are as follows: - “(a) An order directing the JFCM, Kalamassery to keep in abeyance all further proceedings in S.T.No.4252/2016 on its file; and - (b) Such other orders as are deemed fit and proper in the facts and the circumstances of the case.” 5. Heard Sri.Sanil Jose, learned counsel for the petitioner- accused., Sri.P.Shaijan Joseph, learned counsel appearing for the respondent-complainant in these cases and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent-State. ::2:: O.P(Crl).Nos.168/17, etc. 6. Earlier based on the submission made by both sides, the parties were referred for mediation before the Kerala State Mediation and Conciliation Centre, Ernakulam attached to this Court. The parties had arrived at a settlement before the mediation centre. As against the total amount of Rs.50 lakhs involved in respect of the dishonour of cheque in these complaints, the accused had agreed to pay total amount of Rs.45 lakhs to the respective complainants in full and final settlement of all liabilities in the complaints and complainants had also agreed to ensure facilitation of settlement in respect of the crimes registered at their instance against the petitioner-accused. The mediation agreement dated 29.5.2017 arrived at between the parties reads as follows: “MEDIATION SETTLEMENT AGREEMENT FILED UNDER RULES 24 AND 25 OF THE KERALA STATE MEDIATION RULES. The parties to the above case being Manoj Paul, Shiyas K.B., Basheer K.M. and Zeenath Basheer have decided to settle their dispute involved in the above matter relating to cheque cases and connected complaint involving money transaction on the following terms and conditions. 1. The petitioner in the above Original Petitions (Criminal), Manoj Paul agrees to pay total amount of Rs.45 (forty-five) lakhs in full and final settlement of the amounts due to the respondents in these matters, being Shiyas K.B., Basheer K.M., and Zeenath Basheer. Basheer K.M. and Zeenath Basheer are the parents of Shiyas K. B. They agree to accept the said amount in full and final settlement of the amount due by way of the claims raised in S.T. No.5111/2016 from which OP(Crl) No.168/2017 arises, S.T.No.4187/2016 from which OP(Crl) No.219/2017 arises, S.T.No.4254/2016 from which OP(Crl) No.218/2017 arises and S.T.No.4252/2016 from which OP(Crl) No.220/2017 arises. S.T.No.5111/2016 is pending before the Judicial First Class Magistrate Court at Kakkanad and the other three cases are pending before the Judicial First Class Magistrate Court at Kalamassery. Another CrI.M.C.No.35585/2017 is pending before ::3:: O.P(Crl).Nos.168/17, etc. this Honourable Court which arises from Crime No.449/2016 of the Santhanpara Police Station pending before: the Judicial First Class Magistrate Court, Nedumkandam. The issues pertaining to these matters are finally settled between the parties by way of this settlement agreement. 2. The petitioner agrees to withdraw the complaint lodged by him against the respondents which is reported as Crime No.3473/2016 pending before Aluva Police Station in connection with the money transaction from which the above disputes arose and which is settled as per clause (1) of this agreement. 3. The respondents shall file CrI.M.C. before this Honourable Court to quash Crime No.3473/2016 pending before the Aluva Police Station as agreed by both parties and the petitioner shall file necessary affidavit to quash the said crime in view of this settlement agreement. 4. The amount of Rs.45 lakhs is agreed to be paid within a period of 3 months, i.e., on or before 31[st] August 2017 without fail. If the amount is not paid, the respondent is at liberty to execute the agreement and get the above amount of Rs.45 lakhs with interest at 12% per annum till date of realization. 5. Parties agree that no further litigation exists between the parties in this regard and no further claim shall be lodged. Hence it is humbly prayed that this Honourable Court may be pleased to dispose of the above Original Petitions recording this settlement .agreement as art of this Honourable Court's Judgment in the interest of justice. Dated this 29th day of May 2017. Petitioner Respondents Manoj Paul Shiyas K.B. sd/Sd/Basheer K.M sd/Zeenath Basheer sd/sd/sd/Counsel for the petitioner Counsel for the Respondents” Both sides thereafter submitted before this Court that the Original Petition (Crl) may be finally disposed of recording the above said mediation agreement and by passing certain directions of this Court as agreed between the parties. Accordingly this Court had issued the following directions while disposing of the Original Petitions (Crl) as per the common judgment in these 4 cases. ::4:: O.P(Crl).Nos.168/17, etc. “(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.” However, the petitioner-accused had not paid a single paise to the complainants in effectuation of the mediation agreement entered into between the parties. This Court as per order dated 10.4.2018 rendered in I.A.Nos.564, 562, 565 & 563 of 2018 filed by the complainants had recalled the impugned common judgment dated 2.6.2017 rendered in these 4 Original Petitions (Crl.) on the ground that the said judgment was secured by the petitioner-accused on the basis of fraud purported by him. In view of the subsequent development, this Court would only direct that the complainant and accused will report on 23.5.2018 at 11:00 a.m before the Judicial First Class Magistrate Court, Kakkanad, which is dealing with S.T.No.5111/2016 as well as on 25.5.2018 at 11:00 a.m before the Judicial ::5:: O.P(Crl).Nos.168/17, etc. First Class Magistrate Court, Kalamassery, which is dealing with S.T.Nos.4254, 4187 and 4252 of 2016. The trial court concerned would ascertain from the parties concerned as to whether the mediation agreement has been complied with and if the accused has not paid the agreed amount, then the trial court concerned shall proceed with the adjudication of the respective complaints in accordance with law. If the trial court finds that the agreed due amount has not so far been paid by the accused to the complainant, then it should be ensured that the trial in respect of the respective complaints are proceeded with and completed without much delay at any rate well before 31.12.2018. As already held by this Court in Sreelal v. Murali Menon , reported in 2014(3) KLT 536, the matters in relation to mediation agreement shall not be be in any manner adduced in evidence and the trial will have to be completed strictly on the basis of independent evidence that may be adduced before the trial court concerned. 7. Sri.P.Shaijan Joseph, learned counsel for the respondentscomplainants would also submit that this Court may also clarify that the respondent-complainant concerned will also be at liberty to institute separate civil suits for recovery of moneys due to them on account of the above transaction and that the said suits if so filed may also be directed to ::6:: O.P(Crl).Nos.168/17, etc. be expeditiously complete, etc. Accordingly, it is ordered in the interest of justice that it will also be open to the respective complainants to work out other available remedies in accordance with law including institution of civil suits, subject to law of limitation. It is made clear that the time between the mediation agreement entered into between the parties on 29.5.2017 up to today will stand excluded for the purpose of Sec.14 of the Limitation Act. If such civil suits are so filed in accordance with law, then the appropriate trial courts concerned may ensure the completion of such civil trial preferably within a period of one year from the date of institution of such civil suits. Registry will forward copies of this common judgment to the Judicial First Class Magistrate Court, Kakkanad and Judicial First Class Magistrate Court, Kalamassery for necessary information. With these observations and directions, the above Original Petitions (Crl) will stand disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.