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Full Case Details
243 (2017) Delhi Law Times 117 (DB), decided on October 17, 2017
GITA MITTAL, ACTING CHIEF JUSTICE
- The legal permissibility of referring a complaint cases under Section 138 of the
NI Act for amicable settlement through mediation; procedure to be followed
upon settlement and the legal implications of breach of the mediation settlement
is the subject matter of this judgment. - The brief Facts:
Before dealing with the questions raised before us, it is necessary to briefly note some
essential facts of the case. The appellant Smt. Dayawati (“complainant” hereafter) filed a
complaint under Section 138 of the NI Act, complaining that the respondent Shri Yogesh
Kumar Gosain herein (“respondent” hereafter) had a liability of Rs.55,99,600/- towards her as
on 7th April, 2013 as recorded in a regular ledger account for supply of fire-fighting goods
and equipment to the respondent on different dates and different quantities. In part discharge
of this liability, the respondent was stated to have issued two account payee cheques in favour
of the complainants of Rs.11,00,000/- (Cheque No.365406/- dated 1st December, 2014) and
Rs.16,00,000/- (Cheque No.563707 dated 28th November, 2014). Unfortunately, these two
cheques were dishonoured by the respondent’s bank on presentation on account of
“insufficiency of funds”. - As a result, the complainant was compelled to serve a legal notice of demand on the
respondent which, when went unheeded, led to the filing of two complaint cases under
Section 138 of the NI Act before the Patiala House Courts, New Delhi being CC Nos.89/1/15
and 266/1/15. In these proceedings, both parties had expressed the intention to amicably settle
their disputes. Consequently, by a common order dated 1st April, 2015 recorded in both the
complaint cases, the matter was referred for mediation to the Delhi High Court Mediation and
Conciliation Centre. - We extract hereunder the operative part of the order dated 1st April, 2015 which reads as
follows :
Legality of Referral of Criminal Compoundable Cases to Mediation 93
“… Ld. Counsel for accused submits that accused is willing to explore the
possibilities of compromise. Ld. Counsel for complainant is also interested (sic)
in compromise talk. Let the matter be referred to Mediation Cell, High Court
Delhi, Delhi. Parties are directed to appear before the Mediation Cell, Hon’ble
High Court, Delhi on 15.04.2015 at 2:30 p.m.” - It appears that after negotiations at the Delhi High Court Mediation and Conciliation
Centre, the parties settled their disputes under a common settlement agreement dated 14th
May, 2015 under which the accused agreed to pay a total sum of Rs.55,54,600/- to the
complainant as full and final settlement amount in installments with regard to which a
mutually agreed payment schedule was drawn up. It was undertaken that the complainant
would withdraw the complaint cases after receipt of the entire amount. In the agreement
drawn up, the parties agreed to comply with the terms of the settlement which was signed by
both the parties along with their respective counsels. - This settlement agreement was placed before the court on 1st June, 2015 when the
following order was recorded:
“File received back from the Mediation Centre with report of settlement.
Settlement agreement dated 14.05.2015 gone through. At joint request, put up for
compliance of abovesaid settlement agreement and for making of first installment
on 30.06.2015” - Unfortunately, the accused/respondent herein failed to comply with the terms of the
settlement. Though vested with the obligation thereunder to pay a sum of Rs.11,00,000/- as
the first installment on 25th June, 2015, he paid only a sum of Rs.5,00,000/- to the
complainant through RTGS without giving any justification. On the 30th June of 2015, the
Metropolitan Magistrate consequently recorded thus:
“… Ld. Counsel for complainant submits that the accused has not made the
payment of first installment in terms of mediation settlement dated 14.05.2015.
Ld. Counsel for complainant further submits that accused was to pay first
installment of Rs.11,00,000/- on or before the 25.06.2015 however he has paid
only Rs.5,00,000/- through RTGS. No reasonable explanation for the nonpayment of full amount of first installment is given by the accused. Further, no
assurance is given by the accused for making of the due installments within the
stipulated time.
94 Legality of Referral of Criminal Compoundable Cases to Mediation
Considering the facts of the case and submissions on behalf of both the parties, it
is apparent that the accused is not willing to comply with the terms and
conditions of the mediation settlement. Hence, mediation settlement failed.
Let the matter be proceeded on merit, put up on 14.08.2015” - Thereafter, two more opportunities were given by the Metropolitan Magistrate on 14th
August, 2015 and 21st August, 2015 to the accused to comply with the settlement. Finally, in
view of the continued non-compliance, the matter was listed for framing of notice on 28th
September, 2015 and trial on merits. - In the meantime, the Negotiable Instruments (Amendment) Ordinance, 2015, received the
assent of the President of India on the 26th of December, 2016. On account of promulgation
of the ordinance, Section 142 of the Negotiable Instruments Act, 1881 stood amended with
regard to jurisdiction of offences under Section 138 of the enactment and therefore these
cases stood transferred from Patiala House Courts to Tis Hazari Courts at which stage the
matter came to be placed before the ld. referral judge. - At this stage, an application dated 16th November, 2015 was filed by the complainant
seeking enforcement of the settlement agreement dated 14th May, 2015 placing reliance on
the judicial precedents reported at 2013 SCC OnLine Del 124 Hardeep Bajaj v. ICICI; 2015
SCC OnLine Del 7309 Manoj Chandak v. M/s Tour Lovers Tourism (India) Pvt Ltd and
2015 SCC OnLine Del 9334 M/s Arun International v. State of Delhi. The complainant
urged that the settlement agreement was arrived at after long negotiations and meetings; that
it was never repudiated by the accused nor challenged on grounds of it being vitiated for lack
of free consent or any other ground and lastly, that the accused having paid part of the first
agreed installment, has also acted upon the mediation settlement and cannot be allowed to
wriggle free of his obligation under the same. - The respondent, on the other hand, argued that the settlement agreement was not binding
contending primarily, for the first time, that the settlement amount was exorbitant and onerous
pointing out that the complaints were filed with regard to two cheques which were for a
cumulative amount of Rs.27,00,000/- while the settlement amount was of Rs.55,54,600/- and
this by itself was evidence that the agreement was unfair, arbitrary and not binding on the
accused. It was further urged that on receipt of the case from the mediation cell, the statement
of the parties ought to have been recorded before the court whereby the parties would have
adopted the mediation settlement agreement so that the same bore the imprimatur of the court.
As per the respondent, absence of such statement in the case denuded the settlement
agreement of its binding nature and efficacy.
Legality of Referral of Criminal Compoundable Cases to Mediation 95 - The ld. Metropolitan Magistrate was of the view that these questions had arisen, not just
in this case, but a plethora of other cases as well. Consequently, the order dated 13th of
January 2016 was passed making the aforestated reference under Section 395 of the Cr.P.C. to
this court. At the same time, so far as the complaints under Section 138 of the NI Act are
concerned, the ld. MM additionally directed thus:
“In view of the question of law that has arose in the present case, the decision
on which is necessary for further proceedings and a proper adjudication of the
present case – a reference has been made u/s 395 of the CrPC for consideration
and guidance of the Hon’ble High Court of Delhi.
The office attached to this court is directed to send this Reference Order to the
Ld. Registrar General, Hon’ble High Court of Delhi in appropriate manner and
through proper channel.
List the matter now on 06.06.2016 awaiting the outcome of the reference and
clarity on the legal issue.”
VIII. Dispute resolution encouraged in several cases by the Supreme Court in noncompoundable cases as well - We note that there have been several instances when the Supreme Court has approved
exercise of inherent powers under Section 482 of the Cr.P.C. by the High Court for quashing
criminal cases on account of compromise/settlement even though they are not included in the
list of compoundable cases under Section 320 of the Cr.P.C. In (2012) 10 SCC 303, Gian
Singh v. State of Punjab, it was held that this was in exercise of statutory power of the High
Court under Section 482 of the Cr.P.C. The relevant extract of the judgment is reproduced as
under:
“61. … But the criminal cases having overwhelmingly and predominatingly
civil flavour stand on a different footing for the purposes of quashing,
particularly the offences arising from commercial, financial, mercantile,
civil, partnership or such like transactions or the offences arising out of
matrimony relating to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have resolved their
entire dispute. In this category of cases, the High Court may quash the
criminal proceedings if in its view, because of the compromise between the
offender and the victim, the possibility of conviction is remote and bleak and
continuation of the criminal case would put the accused to great oppression
and prejudice and extreme injustice would be caused to him by not quashing
96 Legality of Referral of Criminal Compoundable Cases to Mediation
the criminal case despite full and complete settlement and compromise with
the victim. In other words, the High Court must consider whether it would be
unfair or contrary to the interest of justice to continue with the criminal
proceeding or continuation of the criminal proceeding would tantamount to
abuse of process of law despite settlement and compromise between the
victim and the wrongdoer and whether to secure the ends of justice, it is
appropriate that the criminal case is put to an end and if the answer to the
above question(s) is in the affirmative, the High Court shall be well within its
jurisdiction to quash the criminal proceeding.” - In a recent pronouncement dated 4th October, 2017, reported at 2017 SCC OnLine SC
1189 Parabatbhai Aahir @ Parbatbhai Bhimsinhabhai Karmur and Ors v. State of Gujarat
and Anr a three-Judge bench of the Supreme Court speaking through D.Y. Chandrachud, J.
cited with approval, inter alia, the judgment in Gian Singh reiterating that in exercise of its
inherent jurisdiction under Section 482 of the Cr.P.C, the High Court is empowered to quash
FIRs/Criminal Proceedings emanating from non-compoundable offences if the ends of justice
and the facts of the case, so warrant. While, so approving the Supreme Court, laid down the
exposition of the law in the form of exhaustive guidelines which are extracted thus:
‘(i) Section 482 preserves the inherent powers of the High Court to prevent an
abuse of the process of any court or to secure the ends of justice. The
provision does not confer new powers. It only recognises and preserves
powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First
Information Report or a criminal proceeding on the ground that a settlement
has been arrived at between the offender and the victim is not the same as the
invocation of jurisdiction for the purpose of compounding an offence. While
compounding an offence, the power of the court is governed by the provisions
of Section 320 of the Code of Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence is noncompoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should
be quashed in exercise of its jurisdiction under Section 482, the High Court
must evaluate whether the ends of justice would justify the exercise of the
inherent power;
(iv) While the inherent power of the High Court has a wide ambit and
plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to
prevent an abuse of the process of any court;
Legality of Referral of Criminal Compoundable Cases to Mediation 97
(v) The decision as to whether a complaint or First Information Report should
be quashed on the ground that the offender and victim have settled the
dispute, revolves ultimately on the facts and circumstances of each case and
no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a
plea that the dispute has been settled, the High Court must have due regard to
the nature and gravity of the offence. Heinous and serious offences involving
mental depravity or offences such as murder, rape and dacoity cannot
appropriately be quashed though the victim or the family of the victim have
settled the dispute. Such offences are, truly speaking, not private in nature but
have a serious impact upon society. The decision to continue with the trial in
such cases is founded on the overriding element of public interest in punishing
persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases
which have an overwhelming or predominant element of a civil dispute. They
stand on a distinct footing in so far as the exercise of the inherent power to
quash is concerned;
(viii) Criminal cases involving offences which arise from commercial,
financial, mercantile, partnership or similar transactions with an essentially
civil flavour may in appropriate situations fall for quashing where parties
have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in
view of the compromise between the disputants, the possibility of a conviction
is remote and the continuation of a criminal proceeding would cause
oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and
(ix) above. Economic offences involving the financial and economic wellbeing of the state have implications which lie beyond the domain of a mere
dispute between private disputants. The High Court would be justified in
declining to quash where the offender is involved in an activity akin to a
financial or economic fraud or misdemeanour. The consequences of the act
complained of upon the financial or economic system will weigh in the
balance.’
98 Legality of Referral of Criminal Compoundable Cases to Mediation - The judicial precedent in (2013) 5 SCC 226, K. Srinivas Rao v. D.A. Deepa is in the
context of a complaint filed by the respondent wife under Section 498A of the Indian Penal
Code, against the appellant husband and his family members, the offence under Section 498A
of the IPC being non-compoundable. Noting that mediation, as a method of alternative
dispute redressal had got legal recognition, observations regarding settlements of matrimonial
disputes were made in paras 39 and 46 by the Supreme Court to the courts dealing with
matrimonial matters which read thus :
“39. Quite often, the cause of the misunderstanding in a matrimonial dispute is
trivial and can be sorted out. Mediation as a method of alternative dispute
resolution has got legal recognition now. We have referred several
matrimonial disputes to mediation centres. Our experience shows that about
10% to 15% of matrimonial disputes get settled in this Court through various
mediation centres. We, therefore, feel that at the earliest stage i.e. when the
dispute is taken up by the Family Court or by the court of first instance for
hearing, it must be referred to mediation centres……
xxx xxx xxx - We, therefore, feel that though offence punishable under Section 498-A
IPC is not compoundable, in appropriate cases if the parties are willing and if
it appears to the criminal court that there exist elements of settlement, it should
direct the parties to explore the possibility of settlement through mediation.
This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-
A IPC, but to locate cases where the matrimonial dispute can be nipped in bud
in an equitable manner. The Judges, with their expertise, must ensure that this
exercise does not lead to the erring spouse using mediation process to get out
of clutches of the law. During mediation, the parties can either decide to part
company on mutually agreed terms or they may decide to patch up and stay
together. In either case for the settlement to come through, the complaint will
have to be quashed. In that event, they can approach the High Court and get
the complaint quashed. If, however, they choose not to settle, they can proceed
with the complaint. In this exercise, there is no loss to anyone. If there is
settlement, the parties will be saved from the trials and tribulations of a
criminal case and that will reduce the burden on the courts which will be in the
larger public interest. Obviously, the High Court will quash the complaint only
if after considering all circumstances it finds the settlement to be equitable and
Legality of Referral of Criminal Compoundable Cases to Mediation 99
genuine. Such a course, in our opinion, will be beneficial to those who
genuinely want to accord a quietus to their matrimonial disputes.
xxx xxx xxx - We, therefore, issue directions, which the courts dealing with the
matrimonial matters shall follow.
Xxx xxx xxx
46.2. The criminal courts dealing with the complaint under Section 498-A IPC
should, at any stage and particularly, before they take up the complaint for
hearing, refer the parties to mediation centre if they feel that there exist
elements of settlement and both the parties are willing. However, they should
take care to see that in this exercise, rigour, purport and efficacy of Section
498-A IPC is not diluted. Needless to say that the discretion to grant or not to
grant bail is not in any way curtailed by this direction. It will be for the court
concerned to work out the modalities taking into consideration the facts of
each case.
46.3. All mediation centres shall set up pre-litigation desks/clinics; give them
wide publicity and make efforts to settle matrimonial disputes at pre-litigation
stage.” - Therefore, the Supreme Court has recognized the permissibility of the High Court’s
quashing the criminal prosecutions in exercise of their inherent jurisdiction under Section 482
of the Cr.P.C. on a consideration of the subject matter of the cases. The Supreme Court has
accepted compromises in non-compoundable offences upon evaluation of the genuineness,
fairness, equity and interests of justice in continuing with the criminal proceedings relating to
noncompoundable offences, after settlement of the entire dispute especially in offences
arising from “commercial, financial, civil, partnership” or such like transactions or relating to
matrimonial or family disputes which are private in nature.
United Nations Convention on International Settlement Agreements
Resulting from Mediation, 2018
(SingaporeConvention on Mediation)
Preamble
The Parties to this Convention,
Recognizing the value for international trade of mediation as amethod for settling commercial
disputes in which the parties in disputerequest a third person or persons to assist them in their
attempt tosettle the dispute amicably,
Noting that mediation is increasingly used in international anddomestic commercial practice
as an alternative to litigation,
Considering that the use of mediation results in significant benefits, such as reducing the
instances where a dispute leads to thetermination of a commercial relationship, facilitating the
administrationof international transactions by commercial parties and producingsavings in the
administration of justice by States,
Convinced that the establishment of a framework for internationalsettlement agreements
resulting from mediation that is acceptableto States with different legal, social and economic
systems wouldcontribute to the development of harmonious international economic
relations,
Have agreed as follows:
Article 1. Scope of application - This Convention applies to an agreement resulting frommediation and concluded in writing
by parties to resolve a commercialdispute (“settlement agreement”) which, at the time of its
conclusion,is international in that:
(a) At least two parties to the settlement agreement have theirplaces of business in different
States; or
(b) The State in which the parties to the settlement agreementhave their places of business is
different from either:
(i) The State in which a substantial part of the obligationsunder the settlement agreement is
performed; or
(ii) The State with which the subject matter of thesettlement agreement is most closely
connected. - This Convention does not apply to settlement agreements:
(a) Concluded to resolve a dispute arising from transactionsengaged in by one of the parties (a
consumer) for personal, familyor household purposes;
(b) Relating to family, inheritance or employment law. - This Convention does not apply to:
(a) Settlement agreements:
(i) That have been approved by a court or concluded inthe course of proceedings before a
court; and
(ii) That are enforceable as a judgment in the State ofthat court;
United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018 101
(b) Settlement agreements that have been recorded and areenforceable as an arbitral award.
Article 2. Definitions - For the purposes of article 1, paragraph 1:
(a) If a party has more than one place of business, the relevantplace of business is that which
has the closest relationship to thedispute resolved by the settlement agreement, having regard
to thecircumstances known to, or contemplated by, the parties at the timeof the conclusion of
the settlement agreement;
(b) If a party does not have a place of business, reference isto be made to the party’s habitual
residence. - A settlement agreement is “in writing” if its content is recordedin any form. The
requirement that a settlement agreement be inwriting is met by an electronic communication
if the informationcontained therein is accessible so as to be useable for subsequentreference. - “Mediation” means a process, irrespective of the expressionused or the basis upon which
the process is carried out, wherebyparties attempt to reach an amicable settlement of their
disputewith the assistance of a third person or persons (“the mediator”)lacking the authority to
impose a solution upon the parties to thedispute.
Article 3. General principles - Each Party to the Convention shall enforce a settlementagreement in accordance with its
rules of procedure and under theconditions laid down in this Convention. - If a dispute arises concerning a matter that a party claims wasalready resolved by a
settlement agreement, a Party to the Conventionshall allow the party to invoke the settlement
agreement in accordancewith its rules of procedure and under the conditions laid down inthis
Convention, in order to prove that the matter has already beenresolved.
Article 4. Requirements for reliance on settlement agreements - A party relying on a settlement agreement under this Conventionshall supply to the
competent authority of the Party to the Conventionwhere relief is sought:
(a) The settlement agreement signed by the parties;
(b) Evidence that the settlement agreement resulted frommediation, such as:
(i) The mediator’s signature on the settlement agreement;
(ii) A document signed by the mediator indicating thatthe mediation was carried out;
(iii) An attestation by the institution that administeredthe mediation; or
(iv) In the absence of (i), (ii) or (iii), any other evidenceacceptable to the competent authority. - The requirement that a settlement agreement shall be signed bythe parties or, where
applicable, the mediator is met in relation to anelectronic communication if:
(a) A method is used to identify the parties or the mediatorand to indicate the parties’ or
mediator’s intention in respect of theinformation contained in the electronic communication;
and
102 United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018
(b) The method used is either:
(i) As reliable as appropriate for the purpose for whichthe electronic communication was
generated or
communicated, in the light of all the circumstances,including any relevant agreement; or
(ii) Proven in fact to have fulfilled the functionsdescribed in subparagraph (a) above, by itself
ortogether with further evidence. - If the settlement agreement is not in an official language of theParty to the Convention
where relief is sought, the competentauthority may request a translation thereof into such
language. - The competent authority may require any necessary documentin order to verify that the
requirements of the Convention have beencomplied with. - When considering the request for relief, the competent authorityshall act expeditiously.
Article 5. Grounds for refusing to grant relief - The competent authority of the Party to the Convention whererelief is sought under article
4 may refuse to grant relief at the requestof the party against whom the relief is sought only if
that partyfurnishes to the competent authority proof that:
(a) A party to the settlement agreement was under someincapacity;
(b) The settlement agreement sought to be relied upon:
(i) Is null and void, inoperative or incapable of beingperformed under the law to which the
parties havevalidly subjected it or, failing any indication thereon,under the law deemed
applicable by the competent
authority of the Party to the Convention whererelief is sought under article 4;
(ii) Is not binding, or is not final, according to its terms;or
(iii) Has been subsequently modified;
(c) The obligations in the settlement agreement:
(i) Have been performed; or
(ii) Are not clear or comprehensible;
(d) Granting relief would be contrary to the terms of thesettlement agreement;
(e) There was a serious breach by the mediator of standardsapplicable to the mediator or the
mediation without which breachthat party would not have entered into the settlement
agreement; or
(f) There was a failure by the mediator to disclose to theparties circumstances that raise
justifiabledoubts as to the mediator’simpartiality or independence and such failure to disclose
had amaterial impact or undue influence on a party without which failurethat party would not
have entered into the settlement agreement. - The competent authority of the Party to the Convention whererelief is sought under article
4 may also refuse to grant relief if it findsthat:
(a) Granting relief would be contrary to the public policy ofthat Party; or
United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018 103
(b) The subject matter of the dispute is not capable ofsettlement by mediation under the law
of that Party.
Article 6. Parallel applications or claims
If an application or a claim relating to a settlement agreement hasbeen made to a court, an
arbitral tribunal or any other competentauthority which may affect the relief being sought
under article 4,the competent authority of the Party to the Convention where suchrelief is
sought may, if it considers it proper, adjourn the decision andmay also, on the request of a
party, order the other party to givesuitable security.
Article 7. Other laws or treaties
This Convention shall not deprive any interested party of any rightit may have to avail itself
of a settlement agreement in the mannerand to the extent allowed by the law or the treaties of
the Party to
the Convention where such settlement agreement is sought to berelied upon.
Article 8. Reservations - A Party to the Convention may declare that:
(a) It shall not apply this Convention to settlement agreementsto which it is a party, or to
which anygovernmental agencies or anyperson acting on behalf of a governmental agency is a
party, to theextent specified in the declaration;
(b) It shall apply this Convention only to the extent that theparties to the settlement agreement
have agreed to the application ofthe Convention. - No reservations are permitted except those expressly authorizedin this article.
- Reservations may be made by a Party to the Convention at anytime. Reservations made at
the time of signature shall be subject toconfirmation upon ratification, acceptance or approval.
Suchreservations shall take effect simultaneously with the entry into forceof this Convention
in respect of the Party to the Conventionconcerned. Reservations made at the time of
ratification, acceptanceor approval of this Convention or accession thereto, or at the timeof
making a declaration under article 13 shall take effect simultaneouslywith the entry into force
of this Convention in respect of the Partyto the Convention concerned. Reservations deposited
after the entryinto force of the Convention for that Party to the Convention shalltake effect six
months after the date of the deposit. - Reservations and their confirmations shall be deposited withthe depositary.
- Any Party to the Convention that makes a reservation underthis Convention may withdraw
it at any time. Such withdrawals areto be deposited with the depositary, and shall take effect
six months
after deposit.
104 United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018
Article 9. Effect on settlement agreements
The Convention and any reservation or withdrawal thereof shallapply only to settlement
agreements concluded after the date whenthe Convention, reservation or withdrawal thereof
enters into forcefor the Party to the Convention concerned.
Article 10. Depositary
The Secretary-General of the United Nations is hereby designated as
the depositary of this Convention.
Article 11. Signature, ratification, acceptance, approval,accession - This Convention is open for signature by all States in Singapore,on 7 August 2019, and
thereafter at United Nations Headquarters inNew York. - This Convention is subject to ratification, acceptance or approvalby the signatories.
- This Convention is open for accession by all States that are notsignatories as from the date
it is open for signature. - Instruments of ratification, acceptance, approval or accessionare to be deposited with the
depositary.
