IMPORTANT POINTS
1. Section 89 of CPC provides mediation as Alternative Disputes Resolution process for settling issues between parties in efficacious and expeditious manner in pending matters.
2. Normally criminal cases not fit to be referred for Alternative Disputes Resolution process.

K.Ramakrishnan, J.—This is an application filed by the petitioner, who is the complainant in CC.No.4202 of 2009 on the file of Judicial First Class Magistrate Court-II, Kollam to issue direction to the concerned Magistrate in respect of the above matter under section 482 of Code of Criminal Procedure (herein after called the CODE).

2. It is alleged in the petition, that the petitioner is the complainant in CC.4202/2009 on the file of Judicial First Class Magistrate Court-II, Kollam, filed against the first respondent alleging offences under section 138 of the Negotiable Instruments Act. The respondent is the accused therein. It was posted for evidence on 16.01.2014. On that day, the counsel for the accused requested the court for referring the matter for mediation and accordingly, the matter was referred for mediation. In the mediation, the matter was settled for an amount of Rs.4,50,000/- and six months’ time was granted for payment of the amount to the accused and in default, complainant was allowed to proceed with the case and if amount was paid, then complainant has to withdraw the case. The mediation agreement was signed by the parties on 17.02.2014, but now the learned Magistrate is insisting the petitioner who is the complainant to adduce evidence before expiry of the period mentioned in the agreement. So the petitioner has no other remedy except to approach this court seeking the following relief:-

“to direct the learned Judicial First Class Magistrate II, Kollam to adjourn CC4202/2009 for 6 months to facilitate the condition in the mediation proceedings in the interest of justice”.

3. Heard the counsel for the petitioner, counsel for the first respondent and also the learned Public Prosecutor.

4. The counsel for the petitioner submitted that he is even prepared to wait for six months as provided in the agreement, if the respondent is prepared to pay the amount. But so far though five months have already lapsed, no amount has been paid. Even then, he is prepared to wait till the period mentioned in the agreement and wanted the case to be posted after that period and he is prepared to adduce evidence thereafter.

5. On the other hand, the counsel for the respondent submitted that, since an agreement has been entered into between the parties in the mediation, then it will have the effect of an award and the petitioner is not entitled to proceed with the case. His remedy is to execute the agreement as if it is an award passed under the Legal Services Authorities Act as a civil decree.

6. It is an admitted fact that the petitioner herein filed a private complaint against the first respondent alleging offences under section 138 of the Negotiable Instruments Act alleging that the respondent issued a cheque for Rs.5,00,000/- in discharge of his liability which when presented was dishonoured for the reasons funds in sufficient in his account and in spite of notice issued, he had not paid the amount and so he committed the offence punishable under section 138 of the Negotiable Instruments Act. After conducting enquiry under section 200, 202 of the Code of Criminal Procedure, the learned Magistrate has taken cognizance of the case as CC.No.4209/2009 under section 138 of the Negotiable Instruments Act and notice was issued to the first respondent and he appeared through counsel and particulars offence were read over and explained to him and he pleaded not guilty and the case was posted for evidence.

7. It is an admitted fact that on 16.01.2014, when the case was posted for evidence, at the request of the accused, the matter has been referred for mediation, and it is also an admitted fact that in the mediation, the matter has been discussed between the parties and the parties have come to an agreement that if the first respondent pays Rs.4,50,000/- within six months in instalments, then the petitioner will withdraw the complaint and the agreement was signed by the parties and countersigned by their counsel as well. Thereafte