Dinesh (Advocate) 20 May 2009

Mediation in Sec. 138 of NI Act

A Criminal Complaint filed U/Sec. 138, is refered to Mediation, wherein the Accused undertakes to pay an amount lesser than the Value of the Cheque and the Complainant agrees to receive the same honouring the Mediation and accordingly the Learned Mediator passes an Order directing the Accused to pay the amount undertaken by him giving 4 weeks time and Acquites the Accused. The Accused on Acquital failes to honour the undertaking even after the laps of 4 weeks. Since the Criminal Complaint has been closed, and the Order of the Mediator in a Criminal Proceedings can not be executed in a Civil Court, what would be the legal resource for the Complainant.

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adv. rajeev ( rajoo ) (practicing advocate) 21 May 2009

On the basis of the order you will have to file a civil suit for recovery of money.

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NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.09325226691, 09271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING THE AGREEMENT IN N.I.ACT SEC.138 CASE KINDLY NOTE THAT

1UNDER .NEGOTIABLE INSTRUMENTS ACT SEC.138 A COMPLAINT IS FILED .

2.ACCUSED IS REQUIRED TO APPEAR IN COURT ON RECEIPT OF SUMMONS FROM THE COURT OBTAIN BAIL FROM COURT AND FURNISH VALID SURETY .

3. IN CASE BOTH THE COMPLAINENT AND ACCUSED WANT TO COMPOUND THE MATTER AND THEY ENTER IN TO AN AGREEMENT TO SETTLE THE AMOUNT WITHIN 4 WEEKS.AND ORDER IS PASSED BY THE COURT AND ACCUSED IS ACQUITED.

4.ACCUSED DID NOT REPAY AMOUNT IN 4 WEEKS.

5.IN THIS CASE KINDLY NOTE THAT SOME CORRECTIONS ARE ESSENTIAL IN THE FACTS OF THE CASE. IN CRIMINAL CASE UNDER N.I.ACT. SEC.138 CASE IS FILED IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS AND AFTER HEARING THE COMPLAINENT PROCESS IS ISSUED UNDER SEC.138 OF N.I.ACT. IN CASE PARTIES WANT TO COMPOUND THE CASE AS PER NEW AMMENDMENTS IT IS PERMISSIBLE BUT IT WILL BE BEFORE THE SAME COURT.ANY AGREEMENT SIGNED OUT OF COURT AND SETTLEMENT ARRIVED AT OUT OF COURT , COURT WILL NOT BE INTERFERING. COURT WILL ASK FOR APPLICATION OF BOTH COMPLAINENT AND ACCUSED FOR COMPOUNDING THE CASE AND APPLICATION FOR THE PERMISSION OF THE HONOURABLE COURT FOR THE SAME.

6 COURT WILL EXAMINE THE COMPLAINENT AND HIS ADVOCATE AND ADVOCATE OF ACCUSED SHOULD IDENTIFY THEM AND THEN COURT WILL PASS ORDER ALLOWING COMPOUNDING THE CASE.

7 KINDLY NOTE THAT REMEDY AGAINST ACQUITAL O F ACCUSED IS TO FILE APPEAL AGAINST ACQUITAL TO THE HIGH COURT BY ENCLOSING CERTIFIED COPIES OF THE SAID ORDER AND MENTIONING THE FACTS ABOUT DEFAULT IN MAKING PAYMENT WITHIN 4 WEEKS. HIGH COURT WILL HEAR THE ADVOCATES AND ADMIT THE APPEAL AND THEN AGAIN ACCUSED WILL HAVE TO FACE THE CRIMINAL COURTS PLEASE NOTE.

8 IN CASE YOU NEED ANY FURTHER HELP IN FILING APPEAL AGAINST ACQUITAL TO HC.KINDLY SEND DETAILS.

KINDLY NOTE THAT CIVIL SUIT FOR RECOVERY OF THE AMOUNT CAN ALSO BE FILED BUT YOU HAVE TO PAY STAMP ON THE AMOUNT OF CLAIM .IT IS RS.6430/ - PER RS.100,000/- VALUE OF YOUR CLAIM .PLEASE NOTE

I SUGGEST YOU GO FOR APPEAL AGAINST ACQUITAL TO H.C.

89WITH BEST REGARDS TO YOUR FAMILY AND FRIENDS

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE