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2024 DIGILAW 471 (GUJ)

Patel Dineshbhai Nanjibhai v. State Of Gujarat

2024-03-07

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed under section 378 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) by the appellant-original complainant, challenging the judgment and order passed by the Learned Additional Chief Judicial Magistrate Taluka Idar, District Sabarkantha dated 13-05- 2023, dismissing the complaint by exercising the power under section 256 of the Cr.P.C in special sitting (Lok Adalat). 2. It is the case of the complainant that, the complainant and the respondent-accused were friends and were having family relation, hence as the respondent-accused was in need of the financial assistance, therefore an amount of Rs.2,50,000/- was lent by the complainant to the respondent-accused. On making demand the cheque bearing No.161711 of ICICI bank for the amount of Rs.2,50,000/- dated 08-08-2018 was issued in favor of the complainant. At the time of issuing the cheque, an assurance was given that, on depositing the same, an amount will be credited in the account of the complainant. 3. On depositing the cheque, same was returned with an endorsement of ‘fund insufficient’, therefore the demand notice was issued to the respondent-accused on 31-08-2018 which was received by the respondent-accused on 12-09-2018. As the demand notice was neither replied nor complied with, on following the procedure prescribed under the Negotiable Instruments Act, 1886 (‘the N.I. Act’ referred hereinafter), a private complaint was filed. After recording the verification, learned Trial Court passed an order below Exh.1 issuing the summons under section 204 of the Cr.P.C. vide order dated 24-10-2018. Though the summons/warrants were issued, the respondent remained absent, therefore by impugned order dated 13-05-2023, the learned Trial Court while sitting in Lok Adalat has dismissed the complaint by observing that though more than sufficient opportunities were provided, but no fruitful actions were taken to serve the respondent-accused, therefore learned Trial Court has dismissed the complaint by exercising the power under section 256 of the Cr.P.C. which is impugned before this Court. 4. Heard Learned Advocate Ms.K.P.Soni for the appellant-complainant and Mr.Neeraj Soni for the respondent-accused. 5. Learned Advocate Ms.K.P.Soni for the appellant submits that, the address on which the summons has been issued by the Learned Trial Court is the same address which is mentioned in the appeal memo before this Court. 6. 4. Heard Learned Advocate Ms.K.P.Soni for the appellant-complainant and Mr.Neeraj Soni for the respondent-accused. 5. Learned Advocate Ms.K.P.Soni for the appellant submits that, the address on which the summons has been issued by the Learned Trial Court is the same address which is mentioned in the appeal memo before this Court. 6. Learned Advocate Ms.K.P.Soni submits that on receiving the notice, respondent-accused appeared in person and thereafter represented through the Learned Advocate which shows that respondent-accused somehow managed the service of the notice/summons before the learned Trial Court. 7. Learned Advocate Ms.K.P.Soni submits that, though complainant made all his efforts to serve the summons to the respondent-accused, however he failed and the learned Trial Court while sitting in the Lok Adalat has passed the impugned judgment and order. 8. Learned Advocate Ms.K.P.Soni submits that while sitting in the Lok Adalat, the learned Trial Court can dispose of the matters which are settled and if matter is not disposed of then it is to be sent back to the regular Court for adjudicating it on merits. However, the learned Trial Court beyond its jurisdiction has passed judgment and order of the acquittal by exercising the power under section 256 of Cr.P.C. 9. Learned Advocate Ms.K.P.Soni submits that the complaint under the Negotiable Instruments Act, 1886 would fall under the time bar litigation and on dismissing the complaint the complainant would be left remediless and therefore Learned Advocate Ms.Soni requested to quash the impugned judgment and order and to allow the appeal. 10. On the other hand, Learned Advocate Mr.Neeraj Soni is unable to dispute the fact that impugned order was passed by the Learned Trial Court while sitting in a special sitting in Lok Adalat. Learned Advocate Mr.Neeraj Soni submits that as the complainant fails in securing the presence of the respondent-accused, therefore the learned Trial Court has rightly exercised the power under section 256 of the Cr.P.C. and passed judgment and order of the acquittal. 11. Learned Advocate Mr.Neeraj Soni submits that, in view of the above position this Court may not interfere with the impugned order and prays to dismiss the appeal. 12. Considering the above submissions of the Learned Advocates for the respective parties and from the Rojkam it transpires that on 13-05-2023 following entry was made: “As per the order at Exhibit 1, the case is decided in today’s Lok Adalat. All Court fees stamps are cancelled”. 12. Considering the above submissions of the Learned Advocates for the respective parties and from the Rojkam it transpires that on 13-05-2023 following entry was made: “As per the order at Exhibit 1, the case is decided in today’s Lok Adalat. All Court fees stamps are cancelled”. 13. This Court has considered the arguments advanced by the Learned Advocate for the respective parties and has also considered section 20 of the “The Legal Services Authorities Act, 1987, wherein it is held as under: I. 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 sub-section (1) or where a reference has been made to it under sub-section (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. (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 sub-section (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. Thus from the revealing of the above provisions of Legal Service Authority Act, indisputably the impugned order has been passed by the Learned Magistrate while he was having the charge to conduct the special sitting in Lok Adalat. Nothing has been placed on record to show that any notice was issued to respective parties before placing the matter in the special sitting. This Court has also considered the decision rendered by the Apex Court in the case of Estate Officer Versus Colonel H.V. Mankotia, reported in 2022 (12) SCC 609 wherein the Honorable Apex Court has held as under:- 7. While answering the aforesaid question, the relevant provisions of the Legal Services Authorities Act, 1987, which would have been a bearing on the jurisdiction of the Lok- Adalat are required to be referred to, which read as under:- “19. Organization of Lok Adalats--(1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. Organization of Lok Adalats--(1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. (2) Every Lok Adalat organised for an area shall consist of such number of :- (a) serving or retired judicial officers; and (b) other persons, of the area as may be specified by the State Authority or the District Authority or the Supreme Court Legal Services Committee or the High Court Legal Services Committee, or as the case may be, the Taluk Legal Services Committee, organising such Lok Adalats. (3) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats organised by the Supreme Court Legal Services Committee shall be such as may be prescribed by the Central Government in consultation with the Chief Justice of India. (4) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats other than referred to in sub-section (3) shall be such as may be prescribed by the State Government in consultation with the Chief Justice of the High Court. 4 (5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of :- (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised. Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. 20. Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. 20. 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 5 (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 sub-section (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. (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 sub-section (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 subsection (2), that Lok Adalat shall advice the parties to seek remedy in a court. (7) Where the record of the case is returned under subsection (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).” 7.1 As per sub-section (5) of Section 19, a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute in respect of (i) any case pending 6 before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised. As per sub-section (1) of Section 20 where in any case referred to in clause (i) of sub-section (5) of Section 19- (i) (a) the parties thereof agree; or (i) (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. It further provides 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. It further provides 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. 7.2 As per sub-section (3) of Section 20 where any case is referred to a Lok Adalat under sub-section (1) or where a reference is made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub-section (5) of Section 20 further provides that 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 sub-section (1) for disposal in accordance with law. 8. Thus, a fair reading of the aforesaid provisions of the Legal Services Authorities Act, 1987 makes it clear that the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement / compromise fails and no compromise or settlement could be arrived at between the parties, the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case, the Lok Adalat has no jurisdiction at all to decide the matter on merits once it is found that compromise or settlement could not be arrived at between the parties.” 15. In view of the above, this Court holds that in absence of any settlement or compromise arrived between the parties, the only option available to the member of the Lok Adalat was to return back the papers to the concerned Court for disposal in accordance with law. In any case the Lok Adalat would not have the jurisdiction to adjudicate the matter on merits, therefore this appeal deserves to be allowed and the impugned judgment and order passed by the Learned Additional Chief Judicial Magistrate, Idar in criminal case No.1269 of 2018 deserves to be quashed and set aside. 16. For foregoing reasons this appeal is allowed. In any case the Lok Adalat would not have the jurisdiction to adjudicate the matter on merits, therefore this appeal deserves to be allowed and the impugned judgment and order passed by the Learned Additional Chief Judicial Magistrate, Idar in criminal case No.1269 of 2018 deserves to be quashed and set aside. 16. For foregoing reasons this appeal is allowed. The impugned judgment and order of the acquittal dated 13- 05-2023 passed by Learned Additional Chief Judicial Magistrate, Idar in criminal case No.1269 of 2018 is quashed and set aside. Learned Trial Court shall restore the matter being a criminal case No.1269 of 2018 of it’s original file. Record and Proceedings be sent back.