Karnataka High Court
Sri Raghavendra Rao vs Sri K Srikantha Rao on 1 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1162, (2019) 4 CRIMES 152
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.1028 OF 2015
C/W
CRIMINAL PETITION NO.1029 OF 2015
CRIMINAL PETITION NO.1030 OF 2015
CRIMINAL PETITION NO.1031 OF 2015
CRIMINAL PETITION NO.1032 OF 2015
BETWEEN:
SRI RAGHAVENDRA RAO
S/O SRI NARAYANA RAO
AGED ABOUT 65 YEARS
R/AT MANAJE HOUSE
KAMALASHILE, KUNDAPURA TALUK
UDUPI DISTRICT-576101 ... PETITIONER
(COMMON)
(BY SRI: B V PINTO, ADVOCATE)
AND
SRI K. SRIKANTHA RAO
S/O LATE K HARIRAMAKRISHNA RAO
AGED ABOUT 65 YEARS
R/AT KAIVALY, NO. 3/1
2ND MAIN ROAD, 4TH BLOCK
THYAGARAJANAGARA
BANGALORE-560028 ... RESPONDENT
(COMMON)
(BY SRI: PRADYAMNA .M., ADVOCATE FOR
SRI: K B S MANIAN, ADVOCATE)
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IN CRIMINAL PETITION NO.1028 OF 2015
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 07.04.2014 AND
QUASH THE ENTIRE PROCEEDING IN C.C.NO.9418/2011 ON THE
FILE OF XVIII-ACMM COURT, BANGALORE.
IN CRIMINAL PETITION NO.1029 OF 2015
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 07.04.2014 AND
QUASH THE ENTIRE PROCEEDING IN C.C.NO.9416/2011 ON THE
FILE OF XVIII-ACMM COURT, BANGALORE.
IN CRIMINAL PETITION NO.1030 OF 2015
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 07.04.2014 AND
QUASH THE ENTIRE PROCEEDING IN C.C.NO.9414/2011 ON THE
FILE OF XVIII-ACMM COURT, BANGALORE.
IN CRIMINAL PETITION NO.1031 OF 2015
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 07.04.2014 AND
QUASH THE ENTIRE PROCEEDING IN C.C.NO.9415/2011 ON THE
FILE OF XVIII-ACMM COURT, BANGALORE.
IN CRIMINAL PETITION NO.1032 OF 2015
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 07.04.2014 AND
QUASH THE ENTIRE PROCEEDING IN C.C.NO.9417/2011 ON THE
FILE OF XVIII-ACMM COURT, BANGALORE.
---
THESE CRIMINAL PETITIONS ARE COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
Heard learned counsel for the petitioner and learned counsel for the respondent.
2. Perused the records.
3. The respondent herein presented five private complaints against the petitioner alleging dishonour of various cheques issued by the petitioner as detailed in the chart herebelow :
Sl. Case No Case Cheque Cheque Cheque Crl. Crl.A Amount Amount Con-
No. Before No No. Date Amount RP No. Deposited Deposited viction
High Court Before No. Before Before Amount
the Trial High
Trial Court Court
Court
1 Crl.P.No. C.C a)66684 25.10.10 Rs.2 lakh 56/ 710/ Rs.1,00,000 On 10 lakh
1028/2015 9418/ b)66685 25.10.10 Rs.2 lakh 2015 2014 30.04.15
2011 c)66688 25.10.10 Rs.2 lakh Rs.10 lakh
d)66689 25.10.10 Rs.2 lakh In all five
e)66690 25.10.10 Rs.2 lakh Cases
10 Lakhs
2 Crl.P.No. C.C 66692 25.10.10 Rs.10 58/ 708/ Rs.1,00,000 10 lakh
1029/2015 9416/ Lakh 2015 2014
2011
3 Crl.P.No. C.C. 66686 25.10.10 Rs.2 lakh 57/ 706/ Rs.20,000 On 2 lakh
1030/2015 9414/ 2015 2014 08.06.15
2011 Rs.5 Lakh
In all five
Cases
4 Crl.P.No. C.C. 66691 25.10.10 Rs.1 lakh 59/ 707/ Rs.10,000 Total 1 lakh
1031/2015 9415/ 2015 2014 Deposit
2011 made in
High Court
Rs.15 lakh
5 Crl.P.No C.C. 66687 25.10.10 Rs.2 lakh 60/ 709/ Rs.20,000 2 lakh
1032/2015 9417/ 2015 2014
2011
1)Total deposit made in High Court from 30.4.15 and on 8.6.15 Rs.15 lakh only
2) Total amount deposited before the trial court on 23.7.14 in all five cases Rs.2,50,000/-
3) Amount paid to the complainant on 20.5.14 Rs.2,00,000/- (Rupees Two lakh only) 4
3. During the pendency of these proceedings, parties were referred to Lok Adalath for resolution of the dispute. Both the parties submitted joint memo before the Lok Adalath duly signed by their Advocates. Based on the said memos, Lok Adalath passed orders convicting the petitioner for the offence under Section 138 of the N.I.Act and sentenced to pay Rs.10.00 lakh (C.C.No.9418/2011), Rs.10.00 lakh (C.C.No.9416/2011), Rs.2.00 lakh (C.C.No.9414/2011), Rs.1.00 lakh (C.C.No.9415/2011) and Rs.2.00 lakh (C.C.No.9417/2011) to the complainant on or before 20.05.2014 in the respective complaints, failing which, to undergo simple imprisonment for three months in each case.
4. Referring to the Order Sheet maintained by the trial court, learned counsel for the petitioner pointed out that the proceedings before the Lok Adalath disclose that the Lok Adalath did not consist of requisite quorum. The order sheets indicates that only judicial member has subscribed his signature making it evident that the conciliator did not participate in the Lok Adalath.
As such, the orders passed by the Lok Adalath are non est in the 5 eye of law and the same are unenforceable. Learned counsel further submitted that though the petitioner/accused has paid substantial amount as per the above orders, yet, some of the cheques produced by the complainant were not drawn in the name of the respondent/complainant, as such, the complaints filed before the Court were not maintainable and under the said circumstance, the orders passed by the Lok Adalath are liable to be quashed.
5. Per contra, learned counsel appearing for the respondent/complainant would submit that the petitioner was assisted by advocate. Joint memos were signed not only by the petitioner but also his Advocate. Therefore, the argument of the learned counsel for the petitioner that he was mislead to sign the joint memos cannot be accepted. Further, the award passed by the Lok Adalath is duly acted upon. In terms of the said award, substantial amount has been paid by the petitioner. Therefore, at this length of time, he cannot be heard to say that the award passed by the Lok Adalath suffers from error warranting interference by this Court.
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6. Considered the submissions and perused the records. The Order sheet in respect of the proceedings pending before the Magistrate in C.C.Nos.9418/2011, 9416/2011, 9414/2011, 9415/2011 and 9417/2011 disclose that when the matters were pending before the Magistrate, parties submitted joint memo before the Court and based on the said joint memo, parties were referred to the Lok Adalath. Relevant order sheet dated 7.4.2014 reads as under :-
"Complainant and accused are present.
Shri. G.T.R advocate appearing for complainant and Sri V.C. Advocate appearing for accused are present. Both parties are in proceeding have filed joint memo reporting case is settled between the parties. Hence case is referred to Lok Adalath.
Sd/-
7.4.2014 XVIII Addl.C.M.M. Bengaluru "Case called before Lok Adalath.
Complainant and accused are present. The learned advocate appearing for the complainant and accused have filed joint memo reporting matter is settled 7 between the parties. The contents of the compromise petition and terms and conditions are read over and explained to the parties. They admits the contents. Accused has agreed to pay total amount of Rs.25,00,000/- to the complainant towards the full and final settlement of complaint claimed cheque amount. In view of compromise filing of joint memo accused is convicted for the offence punishable under Section 138 of Negotiable Instrument Act. He sentenced to pay Rs.10,00,000/- the complainant on or before 20/05/2014, failing which he shall undergo simple imprisonment for three months. The accused has agreed to pay balance amount as per joint memo.
Sd/-
Conciliator Judicial Member"
Call on for payment by : 20.05.2014
Sd/-
7.4.14
XVIII Addl.C.M.M. Bengaluru
7. A reading of the above order sheet clearly indicates that much before the parties were referred to Lok Adalath, joint memo was submitted by the parties before the Magistrate 8 reporting settlement. When the matter was already settled, one fails to understand as to what made the learned magistrate to refer the parties to Lok Adalath. Such practice has been deprecated by this Court as well as by the Apex Court. Be that as it may, even the proceedings before the Lok Adalath appear to have been conducted in gross violation of the provisions of the Legal Services Authorities Act of 1987 and the National Legal Services Authority (Lok Adalats) Regulations, 2009. (hereinafter referred to as the 'Regulations 2009' for brevity)
8. Regulation 6 of the Regulations 2009 deals with the Composition of the Lok Adalath. As per this Regulation, at Taluk Level. - The Chairman of the Taluk Legal Services Committee organizing the Lok Adalat shall constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any one or both of the following :-
(i) a member from the legal profession; and
(ii) a social worker belonging to the category as mentioned in item(ii) of sub-para (a) above or a 9 person engaged in para-legal activities of the area, preferably a woman.
Regulation 13 of the Regulations 2009 deals with Procedure in Lok Adalats. It reads as under : -
13. Procedure in Lok Adalats - (1) Members of Lok Adalat have the role of statutory conciliators only and have no judicial role and they, mutatis mutandis, may follow the procedure laid down in Sections 67 to 76 of the Arbitration and Conciliation Act, 1996 (26 of 1996).
(2) Members of Lok Adalat shall not pressurize or coerce any of the parties, to compromise or settle cases or matters, either directly or indirectly. (3) In a Lok Adalat the members shall discuss the subject matter with the parties for arriving at a just settlement or compromise and such members of Lok Adalat shall assist the parties in an independent and impartial manner in their attempt to reach amicable settlement of their dispute:
Provided that if it is found necessary the assistance of an independent person or a trained mediator may also be availed by the Lok Adalat.10
(4) Members of Lok Adalat shall be guided by principles of natural justice, equity, fairplay, objectivity, giving consideration to, among other things, the rights and obligations of the parties, custom and usages and the circumstances surrounding the dispute.
(5) The Lok Adalat may conduct the proceedings in such a manner as it considers appropriate taking into account the circumstances of the case, wishes of the parties including any request by a party to the Lok Adalat to hear oral statements, and the need for a speedy settlement of the dispute.
(6) The Lok Adalat shall not determine a reference, at its own instance, but shall determine only on the basis of a compromise or settlement between the parties by making an award in terms of the compromise or settlement arrived at :
Provided that no Lok Adalath has the power to hear the parties to adjudicate their dispute as a regular court:
Provided further that the award of the Lok Adalat is neither a verdict nor an opinion arrived at by any decision making process.11
9. The order sheet extracted above reveals that the parties did not enter into compromise before the Lok Adalath. On the other hand, the joint memo filed by them before the Magistrate has been made into an order of the Lok Adalath. This order is signed only by the judicial member indicating that the Bench did not consist the quorum prescribed in Regulation 6 of the Regulations 2009 referred to above. More importantly, no award appears to have been passed by the Lok Adalath. Instead, the order sheet reveals that after passing an order as extracted above, the file was once again placed before the learned Magistrate and the matter was posted for payment by 20.5.2014. This order also is passed by the learned Magistrate on the same day indicating that all the proceedings have taken place in the Court of the Chief Metropolitan Magistrate, Bengaluru and not before the Lok Adalath.
10. In the light of the above facts, the question that arises for consideration is, 'Whether the order passed by the Judicial Member could be termed as an award within the 12 meaning of Regulation 17 of the aforesaid Regulations ?
11. In order to answer this question, it may be necessary to refer to Regulation 17 of the Regulations 2009 which reads as under :-
17. Award. (1) Drawing up of the award is merely an administrative act by incorporating the terms of settlement or compromise agreed by the parties under the guidance and assistance from Lok Adalat.
(2) When both parties sign or affix their thumb impression and the members of the Lok Adalat countersign it, it becomes an award. Every award of the Lok Adalat shall be categorical and lucid and shall be written in regional language used in the local courts or in English. It shall also contain particulars of the case, viz., case number, name of court and names of parties, date of receipt, register number assigned to the case in the permanent register (maintained as provided under regulation 20) and date of settlement. Wherever the parties are represented by counsel, they should also be required 13 to sign the settlement or award before the members of the Lok Adalat affix their signature.
(3) In cases referred to Lok Adalat from a court, it shall be mentioned in the award that the plaintiff or petitioner is entitled to refund of the court fees remitted.
(4) Where the parties are not accompanied or represented by counsel, the members of the Lok Adalat shall also verify the identity of parties, before recording the settlement.
(5) Member of the Lok Adalat shall ensue that the parties affix their signatures only after fully understanding the terms of settlement arrived at and recorded. The members of the Lok Adalat shall also satisfy themselves about the following befor affixing their signatures:-
a) that the terms of settlement are not unreasonable or illegal or one-sided and
b) that the parties have entered into the settlement voluntarily and not on account of any threat, coercion or undue influence. 14 (6) Members of the Lok Adalat should affix their signatures only in settlement reached before them and should avoid affixing signatures to settlement reached by the parties outside the Lok Adalat with the assistance of some third parties, to ensure that the Lok Adalats are not used by unscrupulous parties to common fraud, forgery, etc., (7) Lok Adalat shall not grant any bail or a divorce by mutual consent (8) The original award shall form part of the judicial records (in pre-litigation matter, the original award may be kept with the Legal Services Authority or Committee, concerned) and a copy of the award shall be given to each of the parties duly certifying them to be true by the officer designated by the Member-Secretary or Secretary of the High Court Legal Services Committee or District Legal Services Authority or, as the case may be, the Chairman of Taluk Legal Services Committees free of cost and the official seal of the Authority concerned or Committee shall be affixed on all awards.
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As per the above Regulation, the original award shall form part of the judicial record and only the said award is binding on the parties.
12. Law is now well crystallized that Lok Adalaths have no adjudicatory or judicial functions. In the case of State of Punjab and Another Vs. Jalour Singh & Others (2008) 2 SCC 660, the Hon'ble Supreme Court at para 8 has held as under:-
"8. It is evident from the said provisions that the Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and puts its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject-matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok 16 Adalats are guided by the principles of justice, equity and fair play. When the LSA Act refers to "determination" by the Lok Adalat and "award" by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The "award" of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision-making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat".
The principles laid down in the above decision if read in juxtaposition with Regulation 17(8), it leaves no manner of doubt that only the award passed by the Lok Adalath is enforceable under law and not the order passed by the Lok Adalath. In this regard, Section 21 of the Legal Services Authority Act, 1987 may be referred to. It reads : 17
"21. Award of Lok Adalat. - (1) every award of Lok Adalath shall be deemed to be a decree for a civil court or, as the case may be, and 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-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 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 other court of award.
13. In K.N.Govindan Kutty Menon - vs - C.D. Shaji reported in (2012) 2 SCC 51, the Hon'ble Supreme Court has clarified that "by virtue of the deeming provisions, the award passed by the Lok Adalath based on a compromise has to be treated as a decree capable of execution by Civil Court". From the above proposition, it follows that once the Lok Adalath passes an award in terms of Regulation 17 of the Regulations 2009, the same is executable as a decree of a Civil Court and consequently, the learned Magistrate become functus officio to decide the case after the award passed by the Lok Adalath or to 18 enforce the terms of the award. Since the Lok Adalath has failed to pass any award in terms of Regulation 17 of the Regulations 2009, the order dated 7.4.2014 passed by the Judicial Member of the Lok Adalt cannot be construed as "award" within the meaning of Regulation 17 of the Regulations 2009.
14. The impugned proceedings have been conducted by the Lok Adalath and by the learned Magistrate in utter disregard to the provisions of The Legal Services Act 1987 and The National Legal Services Authority (Lok Adalats) Regulations, 2009. Consequently, the order passed by the Lok Adalath dated 7.4.2014 and the consequent proceedings conducted by the learned Magistrate in C.C.Nos.9418/2011, 9416/2011, 9414/2011, 9415/2011 and 9417/2011 on the file of the XVIII ACMM, Bengaluru, are liable to be set aside.
Accordingly, the petitions are allowed. The order dated 7.4.2014 passed by the Lok Adalath in C.C.Nos.9418/2011, 9416/2011, 9414/2011, 9415/2011 and 9417/2011 and all consequent proceedings conducted by the XVIII ACMM, Bengaluru in the above proceedings are quashed. 19
All the complaints are directed to be restored to file. The learned Magistrate shall proceed in the matter in accordance with law. Whatever payments made by the petitioner shall be taken into account while dealing with the respective complaints filed by the respondent.
Since the complaints are pending adjudication since 2011, the trial Court is directed to dispose of the above cases as expeditiously as possible within an outer limit of three months from the date of communication of the order.
Parties are directed to appear before the Trial Court on 15.7.2019 without any further notice. In the event any application is filed before the Trial court seeking exemption of the petitioner from personal appearance, the Trial Court shall consider the same favourably.
Original documents shall be sent back to the Trial Court forthwith.
Petitions stand disposed of in terms of the above order.
Sd/-
JUDGE rs