The Higher Courts in India are constantly encouraging
alternative dispute mechanism for dispute resolutions in a range of matters
including Motor Accidents Claim, Family Disputes, and Negotiable Instruments
complaints (‘Cheque Bounce cases’). Most of the time the parties are encouraged
to choose Lok Adalat route for their ‘timely’ dispute resolution. The data
suggest that Lok Adalat proves to be a successful mechanism if ‘disposal rate’
is the ultimate determining factor.
The Cheque bounce cases are unique when Lok Adalat
is concerned. Firstly, it is a quasi-criminal proceeding which entails punitive
action such as imprisonment and fine. And, Secondly, the proceedings are
summary in nature. Therefore, many a time the accused/convict of S. 138 ‘cheque
bounce case’ takes a route to settle the dispute by giving the undertaking to pay
the amount in a definitive period as agreed by both the parties. The parties
are told to wait till the next scheduled Lok Adalat. In Lok Adalat an award is
passed and the appeal of the convict is allowed in terms of the settlement
pursis/undertaking. Many times, the undertaking remains on paper only and the
signatory of the undertaking failed to comply with the order of the Lok Adalat.
The remedy in such a case, is very limited. As
the Lok Adalat is governed by the
Legal Services Authorities Act, 1987. Section 21 of the said act provides that Every
award of the Lok Adalat shall be deemed to be a decree of a civil court and no appeal shall lie against any award of the Lok Adalat. Here comes the legal
question as to what is the remedy available for a victim of Cheque Bounce case
who succeeds in his complaint and, in appeal the convict undertakes to pay the amount
and, on the basis of that the award is passed. The answer is to file execution
proceedings as provided under the Civil Procedure Code. The execution proceedings in
itself is a very tedious process. What if the victim/complainant wants to revive
the proceedings in which the accused/convict has given the undertaking.
In a Judgment of Sonal Thakkar V. State of Gujarat (Special Criminal
Application (Quashing) No.690 of 2018) High Court of Gujarat observed, …Having
regard to the conduct of the respondent no.2 (the accused), I have no doubt in
my mind that he played fraud with the appellate Court, at the time, when
the Criminal Appeal No.186 of 2014 came to be disposed of in view of the
undertaking, which was given by the respondent no.2 to make the payment within a period of one year. It is clear that the no.2
had no intention of making any payment. He, however, was desperate to get out
of the jail and in such circumstances, misled the appellate Court and got
himself acquitted. And held that, Any judgment or order obtained
by fraud is a nullity and nonest in the eye of law. It could be challenged in
any Court at any time in appeal, revision, writ or even in collateral
proceedings.
The Court ultimately quashed and set aside the award of the Lok Adalat
and the proceedings of Criminal Appeal is revived.
