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2023 DIGILAW 726 (GUJ)

Dipeshbhai Valjibhai Patel v. State Of Gujarat

2023-05-03

NISHA M.THAKORE

body2023
ORDER : 1. This Court upon hearing the learned advocate on record for the applicant- original complainant, had granted leave to appeal vide order dated 28.03.2023 and notice for final disposal was issued in the appeal, which was made returnable on 13.04.2023 and the respondent-original accused was permitted to be served through the concerned police station. 2. The notice has been duly served upon respondent No.2-original accused, however, respondent No.2 has chosen not to appear before this Court or to contest the present appeal by filing his appearance. 3. This appeal arises out of the judgment and order dated 11.02.2023 passed by learned Chief Judicial Magistrate, Nadiad below Exh.1 Criminal Case No.775 of 2019. By the said judgment and order, the learned Magistrate has proceeded to dismiss the complaint for non-prosecution by exercising the powers conferred under Section 256 of Cr.P.C. 4. Heard Mr. Krunal Pandya, learned advocate on record for the appellant and Mr. Bhargav Pandya, learned APP appearing for the respondent-State. 5. The short question which falls for my consideration in this appeal, is whether in the facts of the present case, the learned Magistrate was justified in dismissing the criminal complaint for nonappearance of the complainant, resulting into acquittal of respondent No.2-accused for the offence punishable under Section 138 of the N.I. Act. 6. Before proceeding with the aforesaid issue, it would be appropriate to refer to the certain dates, which has emerged on record, more particularly, from the rojkam of the criminal case. 6.1. On 08.02.2019, the present applicant-original complainant has approached the court of learned Chief Judicial Magistrate, Nadiad by filing complaint under Section 138 of the N.I. Act against respondent No.2-original accused. The said complaint was registered as Criminal Case No.775 of 2019. In the complaint, it was alleged that the complainant and the accused had known each other as they were in the same business. Because of friendly terms, the accused had approached the complainant seeking financial help of an amount of Rs.40,000/-. The complainant had given hand loan of an amount of Rs.40,000/- in cash to the accused. It is further contended that when the complainant had approached the accused for repayment of such amount, the accused had handed over him cheque bearing No.843457 dated 06.09.2018, which was signed by him with an assurance that on presentation of said cheque, the amount would be realized. It is further contended that when the complainant had approached the accused for repayment of such amount, the accused had handed over him cheque bearing No.843457 dated 06.09.2018, which was signed by him with an assurance that on presentation of said cheque, the amount would be realized. The complainant had presented the aforesaid cheque for realization of the amount on 27.11.2018, which got dishonoured with endorsement of “insufficient funds” and was returned back on 28.11.2018. 6.2 The complainant was constrained to give legal notice dated 24.12.2018, which was sent by R.P.A.D. on the known address of the accused. Such notice was duly served upon the accused on 28.12.2018. However, the accused had failed to repay the amount within the prescribed period of 15 days. In such circumstances, cause of action had arisen for the complainant to initiate the appropriate proceedings and the present complaint was filed against the accused. 6.3 Upon verification of the complainant, the summons came to be issued upon the respondent-accused. During the period of March-2020 to December-2020, because of Covid-19 pandemic followed by lock down, the physical hearing of the case was restricted. In such circumstances, the complainant was unable to attend the court proceedings. The Court had again started with physical hearing in the month of March-2021. The matter was adjourned in absence of learned advocate on record for the original complainant. The rojkam reflects that no report was received from the complainant seeking adjournment. Rojkam further indicates that the service of summons upon accused was awaited from 04.04.2019. 6.4 The complainant had moved application Exh.6 seeking issuance of summons upon the accused, to be served through Office of District Superintendent of Police, Rajkot. The same was granted by the learned Magistrate. On the next date of hearing which was fixed on 22.03.2021, the report of the service of summons on accused was awaited. In absence of learned advocate for complainant, the matter was adjourned to 17.05.2021. 6.5 Thereafter, the matter was notified on various dates and neither the complainant nor the learned advocate had appeared. 6.6 The court vide order dated 30.03.2022, had proceeded to issue summons upon the accused. In absence of the accused, the Court had adjourned the matter and it was once again notified on 29.06.2022. Considering the absence of the accused, the Court proceeded to issue bailable warrant upon the accused. 6.6 The court vide order dated 30.03.2022, had proceeded to issue summons upon the accused. In absence of the accused, the Court had adjourned the matter and it was once again notified on 29.06.2022. Considering the absence of the accused, the Court proceeded to issue bailable warrant upon the accused. 6.7 During this period, the learned advocate representing the complainant, had failed to appear, which delayed the trial court proceeding. On 19.10.2022, learned advocate representing the case of the complainant, had appeared and prayed for time to produce the fresh address. Once again, the matter was adjourned and it was kept for the aforesaid purpose. 6.8 Thereafter, the matter had appeared on board before the trial court on various occasions and the bailable warrant could not be issued upon accused in absence of any application or report being submitted by the advocate representing the complainant. Ultimately, the court having noticed the absence of complainant or his advocate, proceeded to dismiss the complaint by order dated 24.01.2023 invoking Section 256 of Cr.P.C. Hence, this appeal at the instance of the complainant. 7. Mr. Krunal Pandya, learned advocate on record for the appellant, has invited attention of this Court to the impugned judgment and order and has submitted that on the date when the order was passed by the learned Magistrate, it was an holiday and the matter was placed before the Lok Adalat, which was special sitting. He has further submitted that neither the learned advocate for the complainant nor the complainant was aware of listing of their case in the special sitting of the Lok Adalat. In such circumstances, the complainant could not remain present before the Court concerned. He has relied upon Section 20 of the Legal Services Authorities Act, 1987, which provides for cognizance of cases to be taken by the Lok Adalat. 7.1 He has further submitted that this being special sitting, the courts are required to deal with cases where the parties have entered into the settlement or there are some chances of settlement. He has further submitted that proviso to Section 20 indicates that before placing the matters before the Lok Adalat reasonable opportunity is to be given to the parties in order to ascertain that there are fair chances of settlement. He has further submitted that proviso to Section 20 indicates that before placing the matters before the Lok Adalat reasonable opportunity is to be given to the parties in order to ascertain that there are fair chances of settlement. 7.2 He therefore, submitted that in absence of such opportunity being given to the applicant- complainant or without hearing them, the criminal case was listed before the Lok Adalat. The Court could not have disposed of by resorting to Section 256 of Cr.P.C. dismissing the complaint for default in special sitting. He has further submitted that the dismissal of complaint on technical ground has ultimately resulted into acquittal of the accused. 7.3 Learned advocate Mr. Pandya has invited attention of this Court to the report seeking adjournment filed by the advocate representing the case of the complainant, which is placed on record at Page Nos. 37 and 38. The aforesaid reports are dated 25.01.2021 and 19.10.2022. He has relied upon the endorsement “granted” appearing below the stamp of learned Chief Judicial Magistrate, Nadiad and has submitted that at one stage, such application was granted by the learned Magistrate, Nadiad. It was for the court to see to it that the prayer urged for service of summons through the office of District Superintendent of Police, Rajkot was accepted. He has invited attention of this Court that notice to accused is duly served at the same address in the present proceedings. 7.4 He therefore, urged this Court to quash and set aside the impugned judgment and order dismissing the complaint. In support of his case, he has placed reliance upon the order dated 18.04.2018 passed by the Co-ordinate Bench of this Court in the case of Arpan Rameshbhai Dalalvs. State of Gujarat delivered in Criminal Appeal No.424 of 2018. 8. Mr. Bhargav Pandya, learned Additional Public Prosecutor has appeared for the respondent-State. 9. Having heard the learned advocates appearing for the respective parties and having perused the impugned order as well as the documents placed for consideration on record, indisputably the complaint was filed on 18.02.2019 before the court of learned Chief Judicial Magistrate, Nadiad. The impugned order came to be passed on 11.02.2023. It transpires from the rojkam that the learned trial court has given sufficient opportunity to the applicant-complainant to take corrective measures to secure the presence of the accused. The impugned order came to be passed on 11.02.2023. It transpires from the rojkam that the learned trial court has given sufficient opportunity to the applicant-complainant to take corrective measures to secure the presence of the accused. The rojkam further indicates that the matter has not progressed in absence of service of bailable warrant upon the accused. At one stage, it has transpired that the complainant was expected to provide fresh address of respondent-accused. In the opinion of the court, the period of four years was sufficient for the applicant-complainant to take corrective steps for service of summons upon the accused. 10. This Court notices that the adjournment application dated 19.10.2022, request was made by learned advocate seeking time for instructions of new address, which came to be granted by the learned Chief Judicial Magistrate. The rojkam further indicates that thereafter the matter was listed on 16.11.2022 followed by the next date on 19.12.2022 and thereafter, on 24.01.2023. On all the three occasions, neither the learned advocate for the applicant nor the complainant had appeared before the concerned court. In such circumstances, the learned Magistrate was constrained to proceed with for dismissal of complaint for non-prosecution under Section 256 of Cr.P.C. Section 256 of Cr.P.C. reads as under: “256. Non- appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.” 11. (2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.” 11. The plain reading of the proviso to Section 256(1) of Cr.P.C. would indicate that where the learned Magistrate is satisfied that the personal attendance of the complainant is not necessary, he may dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where the complainants/prosecution evidence has been recorded and to decide the case on merits where the presence of the complainant may not be necessary. 12. In the present case, the date was fixed for furnishing of new address by the complainant. In absence of the aforesaid details, the trial had not progressed beyond the preliminary stage of service of summons to the accused. In such circumstances, the presence of the complainant was necessary and having accommodate the complainant by providing reasonable opportunity, it was for the complainant to conduct the case or face consequences. 13. So far as the submissions of learned advocate, matter being notified in the special sitting of the Lok Adalat is concerned, Section 20 of Legal Service Authorities Act reads as under: Section 20 in The Legal Services Authorities Act, 1987 Cognizance of cases by Lok Adalats: (1) Where in any case referred to in clause (i) of sub-section (5) of section 19, -(I) (a) the parties thereof agree; or (b) one of the parties thereof makes an application to the court, for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties. (2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. (3) Where any case is referred to a Lok Adalat under subsection (1) or where a reference has been made to it under subsection (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (4) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles. (5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under subsection (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advice the parties to seek remedy in a court. (7) Where the record of the case is returned under sub-section (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1).] 14. Normally, the National Lok Adalat are organized for the subject matters as prescribed under the Legal Service Authorities Act, 1987, with National Legal Service Authorities (Lok Adalat) Regulations, 2009 in Courts and Tribunals. Normally, the National Lok Adalat are organized for the subject matters as prescribed under the Legal Service Authorities Act, 1987, with National Legal Service Authorities (Lok Adalat) Regulations, 2009 in Courts and Tribunals. The category of pre- litigation matters includes the cases falling under Section 138 of the N.I. Act., even the category of the matters pending in the courts and tribunals, which can be disposed under the Lok Adalat includes the cases arising out of Section138 of the N.I. Act. Having recognized the cases of subject matters, the present case arising out of Section 138 of the N.I. Act can also be considered in the special sitting of Magistrate for its disposal. 15. It would be relevant to note that NALSA has requested Legal Service Authorities to organize special sittings of Magistrates for disposal of petty cases, which also includes deadwood cases. One of such instruction issued by NALSA dated 06.12.2014, goes to indicate that the deadwood cases as may be identified, can be placed in the special sitting of Lok Adalat. Ultimately, the object of holding the special sitting is to dispose of the cases through process of arbitration and settlement between the parties. In a way reducing the burden of arrears of work in regular courts and to render justice at the doorsteps of the poor and the needy and to make the justice quicker and less expensive. 16. In light of the aforesaid position, the court finds that the order was passed by the learned Chief Judicial Magistrate on 11.02.2023, it was a special sitting fixed for conducting the cases to be placed before the Lok Adalat. On perusal of the impugned order, the learned Magistrate in the operative part of the order, has mentioned that the order of dismissal for default has been passed as special sitting Magistrate on the ground of non-prosecution pronounced in the open court on 11.02.2023. 17. From the rojkam, it transpires that the matter was notified for production of fresh address as requested by learned advocate for the applicant-complainant. However, in absence of learned advocate for the complainant, it was adjourned to 24.01.2023, thereafter, once again in absence of the learned advocate and the complainant, the matter was adjourned to 11.02.2023. 18. It was for the learned advocate to follow the proceedings. However, in absence of learned advocate for the complainant, it was adjourned to 24.01.2023, thereafter, once again in absence of the learned advocate and the complainant, the matter was adjourned to 11.02.2023. 18. It was for the learned advocate to follow the proceedings. It appears that learned advocate representing the case of the complainant had failed to take notice of the next date of hearing. Thus, the submissions made by learned advocate Mr. Pandya that learned advocate was not informed about the next date of hearing, is not correct. 19. Having noticed the aforesaid facts, the Court finds that the complainant and his advocate have not followed the court proceedings and have been negligent. However, at the same time, the Court finds that the litigant may not suffer as the dismissal of complaint on the technical ground has resulted into acquittal of accused without there being adjudication on merits of the case. The interest of justice demands that the matter should be decided on merits rather than recording technical acquittal by resorting to powers under Section 256 of Cr.P.C. 20. In peculiar facts of the case where the report of service of summons through the office of District Superintendent of Police, Rajkot, was awaited and the accused is served on same address in present proceedings, the present appeal requires consideration. Thus the appeal is allowed with cost. 21. In such circumstances, the impugned order dated 11.02.2023 passed by learned Chief Judicial Magistrate, Nadiad below Exh.1 Criminal Case No.775 of 2019 is quashed and set aside on a condition that applicant- original complainant shall deposit the cost of an amount of Rs.10,000/- before the High Court Legal Services Committee. The original complaint is ordered to be restored to its file and the complainant is directed to remain present on the date fixed by the learned Magistrate. 22. Learned advocate appearing for the complainant and the complainant are expected to co-operate in the proceedings before the trial court. Let the matter be expeditiously decided preferably within a period of six months from the date of receipt of the copy of this order.