1. The plaintiff, now appellant, brought the suit out of which this appeal arises for the purpose of having an award passed by certain arbitrators filed. The plaintiff instituted a criminal ease on 7th August 1913 against the defendants making various charges, the principal one being that they had persuaded her to execute a document which she meant to be a benami document but which they subsequently treated as a genuine deed of sale. The Magistrate referred the case to a gentleman living in the neighbourhood for enquiry, with the suggestion that perhaps he would be able to effect a settlement between the parties. On 31st August an ekrarnama was drawn up by which the parties agreed to refer their difference to arbitrators. They informed the Magistrate of this, and on 1st October the complaint was dismissed. The result of the arbitrators' meeting was an award in favour of the plaintiff, and it is this award that she now seeks to get enforced. The main defence taken by the defendants is that the agreement was invalid because it was made in order to stifle a prosecution; and this defence has been upheld by both the lower Courts.
2. It is contended before us that, as a matter of fact, no prosecution had been started because no process had been issued; and our attention has been drawn to two cases where the suit was in the nature of a suit for damages for malicious prosecution. There it was held that mere filing of a complaint did not amount to a prosecution, but no useful analogy can be drawn from such oases. Here the point for consideration is whether the defendants, in coming to an agreement, did so under the pressure of an imminent criminal ease. It is also urged that the Magistrate himself suggested the reference to arbitrators; but that I think cannot make any difference A third suggestion is that, although Section 417, Indian Penal Code, is one of the sections mentioned at the head of the complaint, there is, in substance, no allegation of cheating. In the written complaint the allegation is distinctly thin; but in the complaint recorded by the Magistrate it comes out quite clearly. The gist of the accusation in the complaint was that the defendants persuaded the complainant to execute a benami document, but directly she had done so they turned round and asserted they had actually bought the property. There can, therefore, be no doubt that there was, an allegation of cheating; and cheating is an offence which is not compoundable under the Criminal Procedure Code.
3. It follows on these findings that the case comes within the scope of Section 23 of the Contract Act as explained by illustration (b); and I am fortified in this view by the decision to which reference is made by the learned Munsif. In my opinion, therefore, the Courts below have taken a correct view of the case. The appeal must be dismissed with costs, hearing fee two gold mohur.
4. I agree.