G.Vijaya Bhaskar Naidu vs The State Of A.P.,Rep.,Pp And ...
2022 Latest Caselaw 1756 AP

   THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY


              CRIMINAL PETITION No.10409 of 2015

ORDER:-

        This Criminal Petition, under Section 482 of the Code

of the Criminal Procedure, 1973, is filed to quash the order

passed on 19.8.2015 in Crl.R.P.No.22 of 2015                     by the

VIII    Additional      District     and   Sessions    Judge-FAC-IX

Additional District and Sessions Judge, Chittoor.

        2.     Brief facts of the case are that the petitioner filed

a private complaint against the 2nd respondent/accused in

S.T.C.No.16 of 2013 on the file of the Judicial Magistrate of

First Class, Pakala for the offence punishable under Section

138 of Negotiable Instruments Act, 1881 (for short „the Act,

1881) on dishonor of a cheque issued in favour of the

petitioner for an amount of Rs.1,70,000/-. Summons were

issued to the accused/2nd respondent herein by the learned

trial Court and on appearance of the 2nd

respondent/accused, he came forward with a proposal for

settlement and accordingly the same was placed before the

Lok Adalat where at an Award was passed. The said Award,

dated 27.7.2013, is as follows;

"1. that the claim towards dishonoured cheque for Rs.1,70,000/- bearing No.628681 dated 30.4.2012 is settled for Rs.1,70,000/-.

2. That the accused agreed to pay the settled amount with the complainant. Consequently the accused is acquitted under Section 147 of N.I. Act of the offence

punishable under Section 138 of Negotiable Instruments Act."

     3.   That    the     accused        agreed   to     pay    sum    of
     Rs.1,70,000/-        to     the     complainant     as     per   the
     settlement on or before 05.8.2013.

4. That the accused fails to pay the settled amount of Rs.1,70,000/- on or before 05.8.2013 the complainant is entitled to receive the cheque amount of Rs.1,70,000/- from the accused towards compensation and that the accused shall liable for punishment for a period of 4 months according to Section 357 (3) of Cr.P.C."

Despite several demands, the 2nd respondent/accused

failed to pay the Award amount. On that the petitioner filed

Crl.M.P.No.2854 of 2014 to issue Non-Bailable Warrant

against the 2nd respondent for execution of Award passed by

Lok Adalath and the said petition was allowed by the

learned Magistrate and issued Non-bailable warrant against

the 2nd respondent on 28.10.2014. Aggrieved by the same,

the 2nd respondent/accused filed Crl.M.P.No.132 of 2015

under Section 70(2) of Criminal Procedure Code to recall the

Non-Bailable Warrant issued against him. The learned

Magistrate dismissed the said petition on 24.3.2015 with an

observation that the 2nd respondent has not come to the

Court with clean hands and also he has issued letter to the

petitioner by endorsing that he will discharge the Lok

Adalath Award amount. Challenging the said order, the 2nd

respondent filed Crl.R.P.No.22 of 2015 on the file of the VIII

Additional District and Sessions Judge-FAC-IX Additional

District and Sessions Judge, Chittoor to set aside the order

passed by the learned Magistrate. The learned Sessions

Judge allowed the Criminal Revision Petition by setting

aside the order passed in Crl.M.P.No.132 of 2015 in

Crl.M.P.No.2854 of 2014 in S.T.C No.16 of 2013 and

accordingly cancelled the Non-bailable warrant issued

against the 2nd respondent is cancelled.

Aggrieved by the said order, the present petition is

filed on the ground that petition under Section 70(2) falls

under Chapter VI of the Criminal Procedure Code, and the

said Chapter relates to Process to compel appearance

during pendency of enquiry or trial but not after passing of

judgment. The Non-bailable warrant issued in this case is

only after the Lok Adalat Award, which is nothing but a

judgment and it is as per Section 425 of the Code of

Criminal Procedure, 1973 (for short „Cr.P.C.‟) which is under

Chapter XXXII of the Cr.P.C., where under the question of

recalling of Non-Bailable warrant would not arise. The

learned Sessions Judge erred in relying upon judgment of

the Hon‟ble Supreme Court reported in K.N. Govindan

Kutty Menon vs C.D. Shaji 1 wherein it was held,

"As per Section 21, every award of the Lok Adalat shall be deemed to be a decree of a civil Court and as such it is executable by that Court. The Act does not make out any such distinction between the reference made by a civil Court and criminal Court. There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various Courts (both civil

AIR 2012 SC 719

and criminal), Tribunals, Family Court, Rent Control Court, Consumer Redressal Forum, Motor Accident Claims Tribunal and other Forums of similar nature. Even if a matter is referred by a criminal Court under Section 138 of the Negotiable Instruments Act, 1881 by virtue of the deeming provisions in Section 21, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil Court"

2. Heard the learned counsel for the petitioner,

learned Special Assistant Public Prosecutor appearing for

the 1st respondent and learned counsel for the

2nd respondent and perused the material available on

record.

3. The contention of the learned counsel for the

petitioner is that the award passed by Lok Adalat Bench

must be honoured by both parties, failing which, coercive

steps for satisfying the Award can be taken by the Court,

else there will be no respect and that settlements before Lok

Adalat would be a mockery.

4. On the other hand, learned counsel for the

2nd respondent/accused contended that there is no legal

validity for the Award passed by the Lok Adalath Bench on

27.7.2013 insofar as punishment is awarded in default of

payment. He further contended that the Lok Adalath award

has to be treated as a decree and the said decree has to be

executed only in civil Courts but not by filing petition for

execution in Crl.M.P.No.2854 of 2014. He relied upon a

decision of the Hon'ble Supreme Court in K.N. Govindan

Kutty Menon Vs C.D. Shaji. Relying upon the above

decision, it is contended for the 2nd respondent that it is

clear that even if the case is referred by the Criminal Court

for settlement before Lok Adalat and if an Award is passed

by Lok Adalat, it has to be treated only as a decree to be

executed by civil Court.

5. On perusal of record, it shows that the learned

Sessions Judge in the Criminal Revision Petition observed

that the only recourse for the revision petitioner is to seek

relaxation of conditions in the award, by filing a writ petition

as the said Court has no power to relax the conditions as

mentioned in the Award and that he also observed on his

scrutiny of the petition, counter, as well as Section 21 of

Legal Services Authority Act, 1987 and the Judgment of the

Hon‟ble Apex Court that the respondent therein cannot file a

petition in Crl.M.P.No.2854 of 2014 for execution of Lok

Adalat Award and the learned trial Court has erroneously

issued Non-bailable warrant against the revision

petitioner/2nd respondent herein which is totally against the

law.

6. Hence the learned Sessions Judge cancelled the

Non-bailable warrant issued under Section 70(2) Cr.P.C.

against the 2nd respondent herein by setting aside the

orders passed by the learned Magistrate in Crl.M.P.No.132

of 2015 in Crl.M.P.No.2854 of 2014 in S.T.C.No.16 of 2013.

7. Learned counsel for the petitioner, after arguing

sometime, limited his prayer to the extent of keeping in

force the Non-bailable warrant issued against the

2nd respondent and its recall under Section 70(2) Cr.P.C be

left open to the learned trial Court.

8. Learned Special Assistant Public Prosecutor

submits that he has no objection for the said proposal.

Learned counsel for the 2nd respondent also accepted the

said proposal and urged that liberty may be given to raise

all his defences before the learned trial Court for recall of

Non-bailable warrant and other issues.

9. In view of the facts and circumstances of the case,

this Court is of the view that if the 2nd respondent appears

before the learned trial Court within a period of two (2)

weeks from the date of receipt of copy of this order, the

learned trial Court is directed to recall the Non-bailable

warrant, if any, pending against the 2nd respondent. The

other contentions raised by the petitioner and

the 2nd respondent can be urged before the learned trial

Court.

With the above observation, this Criminal Petition is

disposed of. Miscellaneous petitions, if any pending, in the

Criminal Petition, shall stand closed.

__________________________________ JUSTICE K. SREENIVASA REDDY Date:12.04.2022 GR

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRIMINAL PETITION No.10409 of 2015

Date: 12.04.2022 GR