Cases which are referred to us for mediation at ADR Centers in Punjab by the courts of concerned districts may be of following categories:
- Family Cases.
- Civil Cases.
- Criminal Cases (Compoundable only)
Family cases include all the matters between husband and wife and all matters arising out of Nikahnama like dissolution of marriage through court, recovery of dower, dowry articles and maintenance and cases on other columns of Nikahnama like column number 17 etc. Civil cases include disputes of lands, houses, buildings, commercial disputes, disputes on contracts, rent matters and contractual obligations.
Criminal matters include all crimes punishable under Pakistan Penal Code and other laws of Pakistan. For the purpose of mediation, criminal matters are further divided into two kinds i.e. compoundable and non-compoundable case. Compoundable cases are those cases in which law permits a compromise between the aggrieved party and accused party and these are the only cases falling in the third and last category which may be referred for mediation with the consent of the parties.
This post concerns one kind of cases in compoundable nature of cases that is cases of cheque Dishonor. Dishonor of cheque is an offense under Section 489-F of Pakistan Penal Code. Column number 6 of 2nd Schedule of Code of Criminal Procedure provides that Section 489-F is compoundable in nature. It means complainant of the case can compound the offense if he enters into a compromise with the accused. This compromise is the reason for its reference for mediation at ADR Centers.
What course does law provide to a person aggrieved of cheque dishonor? That particular person has remedy to get lodged an FIR under Section 489-F Pakistan Penal Code. But Section 489-F is only a penal provision. What about the money of the aggrieved person behind that disputed cheque? This section only provides punishment. For the purpose of recovery of money, civil suit under Order 37 Code of Civil Procedure, 1908 is filed. So a person who has lost money first undergoes lodging of FIR and investigation and then separately files a suit for recovery of his money. This costs him so much of time and money and interestingly, purpose of law is to provide relief to aggrieved persons who face agonies and miseries to avail their remedies.
Coming towards mediation, cases of cheque dishonor have a bigger scope in mediation. Such cases may greatly benefit the aggrieved person if they are referred for mediation when the aggrieved person lodges FIR under Section 489-F because during mediation proceedings things may settle down in terms of money and parties may agree and compound. This can end the litigation between them in criminal as well as civil regimes as discussed in the last paragraph as the purpose of aggrieved person to stimulate law machinery is to recover his money and no one wants to go to the courts and police stations as a matter of routine.
When such a case is referred for mediation at ADR Center and parties agree on one point agenda that is repayment of money on disputed cheque, there may be two situations. Firstly if the guilty party pays the money at the spot at once, issue is resolved ending litigation between the parties. Secondly if the guilty party admits repayment of money but seeks time for the payment of the same, which is a critical situation requiring focus of mediators. In such a case, parties have to agree on installments and if so, what to do about the case pending before referring court since we have only thirty days at mediation center to dispose off a criminal case. If parties agree on acquittal of accused, who will be responsible if the accused resiles from compromise and stops paying installments? There have been scenarios before me at ADR Center Sargodha where parties approached with clear bent of mind regarding payment of money but accused party demanded time for payment and a court of law could not help in it.
Dr Saad Ullah is Additional Principal Medical Officer at District Headquarters Hospital Sargodha and specialist in Eyes Department. He had a dispute of cheque dishonor with another person which was pending before Judge Balal Munir Warraich Learned Judicial Magistrate Sargodha who referred the same for mediation before me. Dr Saad said to me that the accused wants to pay me money and I am ready to receive it but he can not pay it at once so please solve our problem. This was one instance when already people were agreeing on payment. In many of the other cases, of this situation and others when people during mediation proceedings agreed and admitted that they wanted to pay but they can not pay at once, things were sorted out before me. Views of Dr Saad Ullah upon successful mediation can be viewed in the video available on the link:
Views of Dr Saad Ullah- APMO-DHQ Hospital Sargodha
There is one simple rule we need to keep in mind as we are judges trained as mediators.We have to practically implement the vision of Honorable Chief Justice Lahore High Court Lahore and it is a big responsibility. We have to Adopt a safe mode for both the parties. So if the parties want to go for installments and they can not arrange payments at once, such a situation should be created which binds both the parties in the tie. If the accused party resiles and stops paying installments, complainant must have some weapon to use in order to enforce his right. Settlement agreement has an important position in mediation regime. We have to be very specific in drafting the terms of the agreement as to the agreed amount, amount and number of installments and the time when the payment is completed. What to do about the pending matter before the referring court and what to do about the pending matter before the referring court when the payment is complete. This may be done by sine die adjournment of the case pending before referring court or disposing off under section 249 of Code of Criminal Procedure 1908 till complete payment of amount agreed between the parties is made. It may also be provided in the agreement that upon complete payment, parties shall appear before referring court and complainant shall make a statement of compounding upon which referring court shall acquit accused person. The object of binding both the parties is to avoid a resile and curtail the litigation. Comments and feedback are welcomed....
Yasir Hafeez Awan
Civil Judge-Accredited Mediator
ADR Center Sargodha
What course does law provide to a person aggrieved of cheque dishonor? That particular person has remedy to get lodged an FIR under Section 489-F Pakistan Penal Code. But Section 489-F is only a penal provision. What about the money of the aggrieved person behind that disputed cheque? This section only provides punishment. For the purpose of recovery of money, civil suit under Order 37 Code of Civil Procedure, 1908 is filed. So a person who has lost money first undergoes lodging of FIR and investigation and then separately files a suit for recovery of his money. This costs him so much of time and money and interestingly, purpose of law is to provide relief to aggrieved persons who face agonies and miseries to avail their remedies.
Coming towards mediation, cases of cheque dishonor have a bigger scope in mediation. Such cases may greatly benefit the aggrieved person if they are referred for mediation when the aggrieved person lodges FIR under Section 489-F because during mediation proceedings things may settle down in terms of money and parties may agree and compound. This can end the litigation between them in criminal as well as civil regimes as discussed in the last paragraph as the purpose of aggrieved person to stimulate law machinery is to recover his money and no one wants to go to the courts and police stations as a matter of routine.
When such a case is referred for mediation at ADR Center and parties agree on one point agenda that is repayment of money on disputed cheque, there may be two situations. Firstly if the guilty party pays the money at the spot at once, issue is resolved ending litigation between the parties. Secondly if the guilty party admits repayment of money but seeks time for the payment of the same, which is a critical situation requiring focus of mediators. In such a case, parties have to agree on installments and if so, what to do about the case pending before referring court since we have only thirty days at mediation center to dispose off a criminal case. If parties agree on acquittal of accused, who will be responsible if the accused resiles from compromise and stops paying installments? There have been scenarios before me at ADR Center Sargodha where parties approached with clear bent of mind regarding payment of money but accused party demanded time for payment and a court of law could not help in it.
Dr Saad Ullah is Additional Principal Medical Officer at District Headquarters Hospital Sargodha and specialist in Eyes Department. He had a dispute of cheque dishonor with another person which was pending before Judge Balal Munir Warraich Learned Judicial Magistrate Sargodha who referred the same for mediation before me. Dr Saad said to me that the accused wants to pay me money and I am ready to receive it but he can not pay it at once so please solve our problem. This was one instance when already people were agreeing on payment. In many of the other cases, of this situation and others when people during mediation proceedings agreed and admitted that they wanted to pay but they can not pay at once, things were sorted out before me. Views of Dr Saad Ullah upon successful mediation can be viewed in the video available on the link:
Views of Dr Saad Ullah- APMO-DHQ Hospital Sargodha
There is one simple rule we need to keep in mind as we are judges trained as mediators.We have to practically implement the vision of Honorable Chief Justice Lahore High Court Lahore and it is a big responsibility. We have to Adopt a safe mode for both the parties. So if the parties want to go for installments and they can not arrange payments at once, such a situation should be created which binds both the parties in the tie. If the accused party resiles and stops paying installments, complainant must have some weapon to use in order to enforce his right. Settlement agreement has an important position in mediation regime. We have to be very specific in drafting the terms of the agreement as to the agreed amount, amount and number of installments and the time when the payment is completed. What to do about the pending matter before the referring court and what to do about the pending matter before the referring court when the payment is complete. This may be done by sine die adjournment of the case pending before referring court or disposing off under section 249 of Code of Criminal Procedure 1908 till complete payment of amount agreed between the parties is made. It may also be provided in the agreement that upon complete payment, parties shall appear before referring court and complainant shall make a statement of compounding upon which referring court shall acquit accused person. The object of binding both the parties is to avoid a resile and curtail the litigation. Comments and feedback are welcomed....
Yasir Hafeez Awan
Civil Judge-Accredited Mediator
ADR Center Sargodha
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