Himachal Pradesh High Court
Shri Ram Transport Finance Company vs Mukund Lal on 2 August, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 200 of 2021
Decided on: 02.08.2021
.
Shri Ram Transport Finance Company ....Appellant
Versus
Mukund Lal ...Respondent/accused
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the appellant : Mr. Ashwani Kaundal, Advocate.
For the respondent : Mr. Sandeep Chauhan, Advocate.
(Through Video Conference)
Ajay Mohan Goel, Judge (Oral)
Cr.MP(M) No. 1433 of 2020 Leave to appeal granted. The application stands disposed of accordingly.
Criminal Appeal No. 200 of 2021
2. Be registered.
3. As agreed, the appeal is taken up for consideration today itself.
4. Admit.
5. Heard.
6. By way of this appeal filed under Section 378 of the Code of Criminal Procedure, the appellant/complainant has 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 2assailed the order passed by National Lok Adalat in criminal case No. 202-3 of 18/14, titled as SRTFC vs. Mukund Lal, wherein a complaint filed by the present appellant under Section 138 of the .
Negotiable Instruments Act, has been disposed of by ordering the stoppage of the proceedings and acquittal of the accused by invoking the provisions of Section 256 of the Code of Criminal Procedure.
7. Brief facts necessary for the adjudication of the present appeal are that appellant herein filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent in the Court of learned Chief Judicial Magistrate, Shimla, inter alia on the ground that the respondent/accused had got a vehicle financed from the appellant/complainant vide loan agreement dated 20.05.2011 and a cheque amounting to `3.00 Lac in this regard was drawn by the respondent/accused in favour of the appellant/complainant for repayment and the same was dishonoured by the bank concerned.
8. During the pendency of the proceedings, the matter was referred by the learned Court below to the National Lok Adalat, which was scheduled for 14.12.2019, to explore the possibility of the matter being amicably settled by way of a compromise between the parties.
::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 39. It appears from the record that on 14.12.2019, neither any authorized representative of the complainant nor the Counsel representing the complainant appeared before the Lok Adalat, .
which led to passing of the following order by the National Lok Adalat:-
"Case is taken up before the bench of National Lok Adalat, but none has appeared on behalf of the complainant. It appears that complainant is not interested to pursue the matter. In view of the unexplained absence of the complainant, proceeding rwith Section 256 Cr.P.C. the proceedings are stopped and the accused is acquitted. File after due completion be consigned to the record room."
10. Feeling aggrieved, the appellant/complainant has filed this appeal.
11. Learned Counsel for the appellant has argued that the order passed by the National Lok Adalat is not sustainable in the eyes of law because Lok Adalat nowhere enjoys powers, as are contained in Section 256 of the Criminal Procedure Code, and as the complainant was not present before the National Lok Adalat on the date concerned, the only course available with it was to have recorded this fact of non-appearance and returned the case back to the Court from where it was sent to the Lok Adalat for exploring ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 4 the possibilities of arriving at a compromise. According to learned Counsel for the appellant, the case could not have been disposed of under Section 256 of the Code of Criminal Procedure nor the .
accused could have been acquitted by the National Lok Adalat.
Accordingly, a prayer has been made that the impugned order be set aside and the case be restored to the stage from where it was referred to the National Lok Adalat.
12. Learned Counsel for the respondent/accused while supporting the order of the National Lok Adalat has argued that as the impugned order has to be treated as a civil decree, therefore, this appeal, which has been filed by the appellant under Section 378 of the Code of Criminal Procedure is not maintainable.
He has further submitted that there is nothing wrong with the impugned order because once the complainant failed to appear before the Lok Adalat, which is a Court for all intents and purposes and no cogent explanation came forth for the absence of the complainant, then the Lok Adalat has no option but to proceed with in accordance with law.
13. I have heard learned Counsel for the parties and also gone through the impugned order.
14. A Lok Adalat is organized under Chapter VI of the Legal Services Authorities Act, 1987. Section 22 of the Legal Services Authority Act, 1987 deals with powers of Lok Adalat or ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 5 Permanent Lok Adalat. This section inter alia provides that Lok Adalat or Permanent Lok Adalat shall, for the purpose of holding any determination under this Act, have the same powers, as are .
vested in a civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely:-
(a) the summoning and enforcing the attendance of any witness and examining him on oath;
(b) the discovery and production of any document;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record or document or copy of such record or document from any court of office; and
(e) such other matter as may be prescribed.
15. This section further provides that without prejudice to the generality of the powers contained in sub-section (1) thereof, every Lok Adalat or Permanent Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it.
16. Sub-Section (3) provides that all proceedings before a Lok Adalat or a Permanent Lok Adalat shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code and every Lok Adalat or Permanent Lok Adalat shall be deemed to be a civil court for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 617. Section 20 of the said Act deals with cognizance of cases by Lok Adalats and sub-section (1) of the same provides as under:-
.
"(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; of (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."
18. Sub-section (4) of Section 20 provides that 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.
19. Sub-Section (5) thereof 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.
20. Sub-section (7) thereof provides that where the record of the case is returned under sub-section (5) to the Court, such ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 7 court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1).
21. In the considered view of this Court, the rationale of .
referring a matter to the Lok Adalat is to explore the possibility of amicable settlement of the dispute between the parties beyond the rigors that apply to regular Court. However, Lok Adalat/National Lok Adalat is not a substitute for a regular Court. The provisions of Section 20 and sub-sections thereof, are expressly clear that in the absence of the matter which stands referred to the Lok Adalat, being settled between the parties by way of a compromise or settlement, the Lok Adalat has to refer back the matter to the Court from which it was sent to the Lok Adalat for the purpose of amicable settlement and the Court has to proceed with the matter from the same stage from which it was sent to the Lok Adalat.
22. Coming to the facts of the present case, after the matter stood referred to the National Lok Adalat by the Court concerned, the endeavour which was to be made by the National Lok Adalat was to have the matter compromised or settled between the parties. But, of course, the compromise could have been arrived at between the parties, if there was meeting of minds.
23. A compromise or settlement cannot be forced upon the parties. In other words, in case one of the parties does not appears before the Lok Adalat where their case stands referred for ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 8 compromise or settlement, the only inference which can be prudently drawn is that the party is not interested in having the matter compromised. That being the situation, the Lok Adalat has .
to thereafter proceed by ordering that as the matter could not be settled between the parties, the same is referred back to the court from which it was sent for the purpose of compromise or settlement. However, by no stretch of imagination, the Lok Adalat can confer upon itself the powers of a regular criminal Court and proceed as per the provisions of Section 256 of the Code of Criminal Procedure, as has been done in the present case by the Lok Adalat.
24. It is reiterated that Lok Adalat is not a substitute for a regular Court and in the absence of the powers enshrined under Section 256 of the Criminal Procedure Code being expressly conferred upon the Lok Adalat by the provisions of Legal Services Authorities Act, 1987, the same, by no stretch of imagination, can be exercised by the Lok Adalat.
25. In the present case, exercise of such power by the National Lok Adalat, resulting in the passing of the impugned order is an act where the National Lok Adalat has overreached the jurisdiction conferred upon it by the parent Act, and therefore, in the considered view of the Court, the impugned order passed by it is not sustainable in the eyes of law.
::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 926. The contention of learned Counsel for the respondent that the order passed by the Lok Adalat is not assailable before this Court as the same is to be treated as a decree of a civil Court .
is also without any merit. The provisions of Section 21 of the 1987 Act demonstrate that in terms thereof, every Award of the Lok Adalat shall be deemed to be a decree of a civil Court or, as the case may be, an order of any other Court. Sub-section (5) of Section 20 thereof contemplates 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 is to be returned to the Court from which the reference was originally received. This demonstrates that Lok Adalat can pass an Award only when there is a compromise or settlement arrived at between the parties before it. Admittedly, in the present case, no compromise or settlement was arrived at between the parties. That being the case, no Award indeed was announced by the Lok Adalat in terms of 1987 Act. Therefore, the contention of learned Counsel for the respondent that the impugned order has to be treated as an Award is completely mis-conceived.
27. There is yet another important aspect of the matter, which this Court shall dwell at this stage.
28. Section 256 of the Code of Criminal Procedure provides that if the summon has been issued on the complaint, ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 10 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 contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Proviso to this Section further provides 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.
29. Hon'ble Supreme Court of India in Associated Cement Co. Ltd. vs. Keshvanand, (1998) 1 Supreme Court Cases 687, has been pleased to hold that the purpose of including a provision like Section 256 is that it affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The Hon'ble Court was further pleased to observe that the same does not mean that if the complainant is absent, the Court "has a duty to acquit the accused in invitum".
::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 1130. Hon'ble Supreme Court of India in Mohd. Azeem vs. A. Venkatesh and another, (2002) 7 Supreme Court Cases 726, has been pleased to held as under:-
.
"2. The petitioner filed a criminal complaint under Section 200 of the Criminal Procedure Code (for short "CrPC") against Respondent 1 in the Court of Metropolitan Magistrate, Secunderabad for an alleged offence under provision of Section 138 of the Negotiable Instruments Act. The petitioner was prosecuting the complaint diligently and had been attending the Court of Magistrate on all dates excepting one because according to him he wrongly noted the date for hearing. Due to his absence on one day fixed for trial, the Magistrate by order dated 22-6-2001 dismissed his complaint and acquitted the accused. Aggrieved by the order of the Magistrate, the petitioner preferred an appeal under Section 378(4) CrPC to the High Court and the High Court by the impugned order dated 24-7- 2001 dismissed his appeal against which the petitioner has approached this Court.
3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 12 observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint .
for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.
4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant."
31. This Court in Bal Krishan Rawat vs. Pyare Lal Nepta, Latest HLJ 2018 (HP) 516, after placing reliance on the judgments passed by Hon'ble Supreme Court of India as well as judgment of this Court has been pleased to hold that single absence of the complainant in proceedings under Section 138 of the Negotiable Instruments Act, does not justify the act of the learned Magistrate of dismissing the complainant in default, more so, if the presence of the complainant on the relevant date was unnecessary. This ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 13 Court has been further pleased to hold that instead of dismissing the complaint in default, the Magistrate should have adjudicated upon the complaint on merit, and for that purpose, he might have .
adjourned the case for a future date. It has also been held that acquittal of the accused, without adjudicating upon merits, due to non-appearance of the complainant on the date of defense evidence, who was sincerely pursuing his remedy, was improper.
32. Coming to the facts of the present case, as I have already mentioned hereinabove, the provisions of Section 256 of the Code of Criminal Procedure cannot be exercised by the Lok Adalat. Not only this, the 1987 Act does not confer any power upon the Lok Adalat to dismiss the case in default on account of non-
appearance of a complainant or proceed against the respondent side ex parte on the failure of the respondent to appear before the Court. When the case was referred to the Lok Adalat in order to explore the possibility of a compromise between the parties, dismissal of the complaint by the Lok Adalat for want of attendance of the complainant is, but obvious, an act beyond the jurisdiction of the Lok Adalat. As the respondent stands acquitted by way of the impugned order, therefore, the order passed by the Lok Adalat could have been assailed by the present appellant only under the provisions of Section 378(4) of the Code of Criminal Procedure in terms of the law laid down by this Court in H.P. Agro ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP 14 Industries Corporation Ltd. vesus M.P.S. Chawla, 1997 (2) Crimes
591.
33. In view of the discussion held hereinabove, this appeal .
is allowed and order dated 14.12.2019, passed by National Lok Adalat, Bench No. 7, District Court, Shimla, H.P. in criminal Case No. 202-3 of 18/14, titled as SRTFC vs Mukund Lal, vide which, the National Lok Adalat, on account of the absence of the complainant, proceeded to stop the proceedings under Section 256 of the Code of Criminal Procedure and to acquit the accused, is quashed and set aside and the matter is remanded back to the appropriate Court from which it stood referred to the National Lok Adalat with the direction that the Court shall proceed with the matter, from the stage, from which it was referred to the National Lok Adalat and proceeding with in accordance with law. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel) Judge August 02, 2021 (narender ::: Downloaded on - 05/08/2021 20:09:56 :::HCHP