Mujaffar Ali vs Rafiqan
2022 Latest Caselaw 5941 MP

                                                                  01

        THE HIGH COURT OF MADHYA PRADESH
                        CRA 3747/2021
                    (Mujaffar Ali Vs. Rafiqan)

Gwalior, Dated: 22.04.2022
      Shri Alok Katare, learned counsel for appellant.

      Shri Rajeev Shrivastava, learned counsel for respondent.

None for the complainant, though served.

Present Criminal Appeal has been filed under Section 372 read

with 378(4) CrPC against the judgment dated 20.07.2016 passed by

Additional Chief Judicial Magistrate Gwalior in criminal case No.

7238/2013 whereby respondent/accused has been acquitted for the

offence punishable under Section 138 of Negotiable Instruments Act.

The brief facts are that respondent borrowed Rs. 1,70,000/-

from the complainant for household expenses. For returning the said

amount he gave chaque to the complainant. When the said cheque was

bounced, applicant filed a complaint before Judicial Magistrate First

Class Gwalior. The Judicial Magistrate First Class Gwalior vide order

dated 24.08.2012 found the appellant guilty and convicted him for six

months R.I. and directed him to pay Rs. 1,73,000/- as compensation.

Against the said order, appellant filed an appeal before Additional

Sessions Judge Gwalior. During the pendency of the criminal appeal,

the matter was settled before the Lok Adalat in compromise .

In terms of the compromise, the accused respondent was

required to make a payment of Rs.1,70,000/- which was paid on the

same day through a post dated cheque drawn in favour of the

appellant complainant.

The said cheque drawn by the accused respondent in favour of

the appellant complainant as per the compromise arrived at between

the appellant complainant and the accused respondent before the Lok

Adalat, also got dishonoured, whereupon the appellant complainant

filed criminal complaint No.7218/2013 u/s 138 of the Negotiable

Instruments Act, referred to above, against the accused respondent

which was dismissed by order dated 20.07.2016. Against the said

order appellant is before this Court.

In the instant case, the respondent clearly had a liability. As

observed above, there was an earlier adjudication which led to the

conviction of the respondent accused. Thus there was adjudication of

liability of the respondent accused. While the appeal was pending, the

matter was settled in the Lok Adalat in acknowledgment of liability of

the accused respondent to the appellant complainant.

The cheque issued pursuant to the order of the Lok Adalat, was

also dishonoured. This clearly gave rise to afresh cause of action

under Section 138 of the Negotiable Instruments Act.

In K.N. Govindan Kutty Menon vs. C.D. Shaji reported in

(2012)2 SCC 51 cited by the appellant complainant, this Court held:

"11. In the case on hand, the question posed for consideration before the High Court was that "when a criminal case referred to by the Magistrate to a Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable by that court?" After

highlighting the relevant provisions, namely, Section 21 of the Act, it was contended before the High Court that every award passed by the Lok Adalat has to be deemed to be a decree of a civil court and as such, executable by that court.

23. In the case on hand, the courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and a criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties".

Every award of the Lok Adalat is, as held in K.N. Govindan

Kutty Menon vs. C.D. Shaji (supra), deemed to be a decree of civil

court and executable as a legally enforceable debt. The dishonour of

the cheque gave rise to a cause of action under Section 138 of the

Negotiable Instruments Act. The impugned judgment and order is

misconceived.

The appeal is accordingly allowed and the judgment and order

impugned is set aside.

The matter is remitted back to the trial Court for fresh

consideration.

(Deepak Kumar Agarwal) Judge ojha

YOGENDRA OJHA 2022.04.23 15:19:41 +05'30'