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2024 DIGILAW 500 (GUJ)

Nareshkumar Maganbhai Solanki v. State of Gujarat

2024-03-12

M.K.THAKKER

body2024
JUDGMENT : M.K. THAKKER, J. 1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the judgment and order passed by the learned Judicial Magistrate First Class, Limbdi in Criminal Case No. 607 of 2013 dated 12.03.2022 acquitting the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I. Act’ referred hereinafter) by exercising the power under Section 256 of the Cr.P.C. 2. It is the case of the complainant that the complainant had approached the respondent-accused for getting the job at B.P. Khushwah Education Trust, Hathijan, Ahmedabad and on demand raised by the respondent-accused, the amount of Rs. 3 Lakh was given to the respondent-accused to get the job. As the job was given only on probation basis, the amount which was paid was demanded back. To repay the amount, the cheque bearing No. 516118 of IndusInd Bank dated 31.08.2013 for the amount of Rs. 3 Lakh was issued in favour of the complainant. On depositing the same, it was returned with an endorsement of ‘Drawer’s signature differ’ and therefore, on following the due procedure prescribed under the N.I. Act, the complaint came to be filed. 3. On filing the complaint, after recording the verification, the summons came to be issued on 15.10.2013 thereafter the matter was adjourned time to time for securing the presence of the respondent-accused. It transpires from the record that on number of occasions the complainant or his advocate remained absent and the summons could not be served upon the respondent-accused. Therefore, the matter was placed before the Lok Adalat and Lok Adalat has passed the judgment and order of acquittal by exercising the power under Section 256 of the Cr.P.C. which is impugned before this Court. 4. Heard the learned advocate Mr. Vicky Mehta for the appellant-original complainant and though the Rule was served through the concerned police station in application for seeking leave to prefer an appeal, the respondent has chosen not to appear either in person or through an advocate before this Court. 4.1. Learned advocate Mr. 4. Heard the learned advocate Mr. Vicky Mehta for the appellant-original complainant and though the Rule was served through the concerned police station in application for seeking leave to prefer an appeal, the respondent has chosen not to appear either in person or through an advocate before this Court. 4.1. Learned advocate Mr. V.B. Mehta submits that it is true that the complainant and his advocate remained absent on the day when the impugned judgment and order of the acquittal was passed and some dates prior to the impugned judgment and order, but the matter was placed before the learned Lok Adalat without issuing any notice or without obtaining the consent and though the learned Lok Adalat is not having the jurisdiction to adjudicate the matter on merits, the judgment and order of the acquittal was passed by the learned Lok Adalat dismissing the complaint for non-prosecution. 4.2. Learned advocate Mr. Mehta submits that from the rojkaam it transpires that, the case is pending since 2013 and though the notice/summons were issued on the address which is mentioned in the appeal memo, the same are not served, however in the proceedings before this Court, Rule which is issued was served through the concerned police station at the address mentioned in the pursis below Exhibit 9, which shows that though the respondent was aware about the pendency of the proceedings, he some how managed the service and did not appear before the learned trial Court. 4.3. Learned advocate Mr. Mehta submits that if the matter is referred to the learned Lok Adalat and if the same could not be settled then learned Lok Adalat could have returned back the matter to the regular court and the regular court could have after considering the merits of the case decided the issue involved. However, without doing so, the judgment and order of the acquittal was passed by the learned Lok Adalat and therefore, learned advocate Mr. Mehta prays to quash the impugned judgment and order and to restore the criminal case to its original file. 4.4. Learned advocate Mr. Mehta further submits that from the rojkaam it transpires that on many consecutive dates the complainant and the advocate remained absent and therefore, the cost which would be awarded by the Court shall be deposited with the Registry of this Court. 5. 4.4. Learned advocate Mr. Mehta further submits that from the rojkaam it transpires that on many consecutive dates the complainant and the advocate remained absent and therefore, the cost which would be awarded by the Court shall be deposited with the Registry of this Court. 5. Considering the submissions advanced by the learned advocate for the respective parties, before going into the merits, relevant provisions of the Legal Service Authorities Act, 1987 is required to be referred, which is reproduced herein-below: “Section 20: (1) Where in any case referred to in clause (i) of sub-section (5) of section 19: (i) (a) the parties thereof agree. (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. (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).” 6. From the rojkaam it transpires that, on the day when the impugned judgment and order was passed, the matter was referred to the National Lok Adalat. In the judgment and order of the acquittal, which was passed below Exhibit 1, the learned trial Court has referred that the case is pending since long for the service of summons to the accused and though sufficient opportunity was provided, the complainant and his advocate have failed in furnishing the fresh address of respondent-accused. It is further observed that previously different addresses were provided and though the summons and warrant have been issued on the same address, it was returned with an endorsement that the accused is not staying at the given address. 6.1. It is observed in the impugned judgment and order that sufficient opportunities were provided, but nonappearance of the complainant and his advocate suggests that they have lost interest in the proceedings pending before the Court and therefore, the complaint came to be dismissed for non-prosecution. This order was passed by the learned trial Court on the day when the National Lok Adalat was organized. This order was passed by the learned trial Court on the day when the National Lok Adalat was organized. As per sub-section (6) of section 20 it provides that when no award is passed by the Lok Adalat on the ground that no compromise or settlement is arrived between the parties, Lok Adalat shall advice the parties to seek remedy in the Court. 7. Learned advocate Mr. Mehta has referred the decision rendered by the Coordinate Bench of this Court in the case of Harishbhai Chunilalbhai Patel through Poa Kishorbhai Lalbhai Bhavsar vs. State of Gujarat, 2023 (0) AIJELHC 247757 Wherein this Court has observed as under: “13. Now, coming to the last submission of disposing the matter in special sitting of Lok Adalat is concerned, the same is no more res integra. The facts in the case of Estate Officer (supra) goes to suggest that when the matter was placed before the Bench of High Court in special sitting of Lok Adalat, the Members of the Lok Adalat had entered into the merits of the writ petition and had dismissed the writ petition preferred by the appellant on merits. Being aggrieved by the said decision of Lok Adalat, the appellant had approached the Hon’ble Supreme Court submitting that the order passed in the Lok Adalat was beyond the jurisdiction of Lok Adalat and, therefore, the same is not legal in the eyes of law. The Hon’ble Supreme Court had taken into consideration the relevant provisions of Legal Services Authorities Act, 1987 which have bearing on the jurisdiction of the Lok Adalat. Section 19 of the Legal Services Authorities Act, 1987 pertains to the organization of Lok Adalat. Sub-Section (5) of Section 19 provides about the jurisdiction of Lok Adalat to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before or any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organized. Section 20 of the Legal Services Authorities Act provides cognizance of cases which may be taken by the Lok Adalats. On bare reading of the aforesaid provisions, more particularly, considering proviso of sub-section (1) of Section 20 prescribes procedure to be followed before placing such matter in the special sitting. Section 20 of the Legal Services Authorities Act provides cognizance of cases which may be taken by the Lok Adalats. On bare reading of the aforesaid provisions, more particularly, considering proviso of sub-section (1) of Section 20 prescribes procedure to be followed before placing such matter in the special sitting. It is expected of the Court that the matter can be referred to Lok Adalat only if the parties thereof agreed or 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 Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the Court shall refer such 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. Further sub-section (3) of Section 20 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 based on the compromise or settlement which may be arrived between the parties. Eventually, if no compromise or settlement is arrived between the parties, which is as per sub-section (5) of Section 20, no award is required to be drawn by the Lok Adalat and the matter is required to be returned back to the concerned Court, from which, the reference has been received for disposal in accordance with law. 14. Thus, on conjoint reading of the aforesaid provisions of Legal Services Authorities Act indisputably the impugned order has been passed by the learned Magistrate while he was having charge to conduct special sitting in Lok Adalat. Nothing has been placed on record to show that any notice was issued to the respective parties before placing matter in the special sitting. The impression which is gathered from reading of the impugned order goes to suggest that the matter was treated as a dormant case and was never placed for dismissal in the special sitting. Such practice of placing dormant cases in the special sitting is not acceptable. The impression which is gathered from reading of the impugned order goes to suggest that the matter was treated as a dormant case and was never placed for dismissal in the special sitting. Such practice of placing dormant cases in the special sitting is not acceptable. In light of the legal position, this court finds that the learned Magistrate had no jurisdiction to dispose of the case for dismissal for default by resorting to Section 256 of the Code of Criminal Procedure in special sitting. The Court is conscious of the fact that Section 143 of the Negotiable Instruments Act puts obligation on the Court to dispose of the case expeditiously preferably within a period of 6 months and cases related to the NI Act are treated as summary trial. However, the fact remains that in absence of any settlement or compromise arrived at between the parties, the only option available to the Member of the Lok Adalat was to return back the paper to the concerned Court for disposal in accordance with law. Hence, present appeal succeeds on the aforesaid count.” 8. In view of the above provisions and the discussion made by this Court in the aforesaid decision, this Court is of the view that while sitting in the Lok Adalat the learned trial Court is not having the jurisdiction to adjudicate the matter on merits. 9. One more aspect is that the complainant is remaining absent since more than five occasions continuously and the trial is pending since 2013 for the service of summons on the respondent-accused. Two addresses were given in the appeal memo, where Rule was served and respondent-accused has not chosen to appear before this Court. 10. In view of above, this Court is of the view that the impugned order is required to be set aside and the complaint is required to be restored to its original file. However, at the same time, the complainant remained absent for more than five occasions continuously, therefore, appropriate cost is also required to be imposed while allowing this appeal. 11. Resultantly, this appeal is allowed. The impugned judgment and order dated 12.03.2022 passed by the learned Judicial Magistrate First Class, Limbdi in Criminal Case No. 607 of 2013 acquitting the respondent-accused is quashed and set aside. 11. Resultantly, this appeal is allowed. The impugned judgment and order dated 12.03.2022 passed by the learned Judicial Magistrate First Class, Limbdi in Criminal Case No. 607 of 2013 acquitting the respondent-accused is quashed and set aside. The proceeding shall stand restored to its original number on the file of the learned Magistrate and prosecution shall now proceed from the stage when the order of the acquittal was passed. The complainant is directed to deposit cost of Rs. 20,000/- before the Registry of this Court within a period of two weeks from the date of the order and on depositing the same, the Registry shall disburse the same in the account of Shishu Gruh Paldi, by electronic mode. 12. It is needless to say that the case is pending since 2013, no any unnecessary adjournments would be sought for before the learned trial Court and both the parties would cooperate with the trial and to see that matter is concluded without any further delay. 13. Record and proceedings be sent back to the concerned Court, forthwith.