Gujarat High Court
Harishbhai Chunibhai Patel Through Poa ... vs State Of Gujarat on 14 June, 2023
R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1888 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARISHBHAI CHUNIBHAI PATEL THROUGH POA KISHORBHAI LALBHAI
BHAVSAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. MAHITOSH U SINGH(7015) for the Appellant(s) No. 1
MR. MH SHEKHAWAT(7194) for the Appellant(s) No. 1
MR VICKY B MEHTA(5422) for the Opponent(s)/Respondent(s) No. 2
Mr. Bhargav Pandya, Addl. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 14/06/2023
ORAL JUDGMENT
1.0. This appeal is filed at the instance of the original complainant challenging the judgment and order of acquittal dated 09.09.2017 passed by the learned 7th Judicial Magistrate First Class, Ahmedabad (Rural), Mirzapur in Criminal Case No.2079 of 2014. By the said judgment and order, the learned Magistrate has dismissed the complaint for non prosecution by Page 1 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 passing order below Exh.1 in exercise of powers conferred under Section 256 of the Code of Criminal Procedure thereby acquitting the respondent - original accused from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2.0. This appeal was filed along with leave to appeal under Section 378(4) of the Code of Criminal Procedure. This Court by order dated 09.08.2019 passed in Criminal Miscellaneous Application No.15064 of 2018 had granted leave to appeal. The appeal was notified for admission hearing. This Court by order dated 24.09.2019 upon hearing the learned advocate for the appellant had issued notice for final disposal. The order reads as under:
"Mr.Mahitosh Singh, learned advocate for the appellant states that the judgment is not on merit and the order of acquittal is passed on the ground of holding absence of the complainant.
Issue Notice for final disposal, returnable on 22.10.2019. Learned APP waives service of notice of rule for and on behalf of respondent-State."
2.1. Upon service of notice, learned advocate for Mr. Vicky B Mehta had appeared on behalf of respondent no2- original accused. The appeal was adjourned from time to time and lastly it was heard on 27.4.2023. As the arguments were concluded, the matter was reserved for orders. Mr. Singh, learned advocate for the appellant was permitted to place on Page 2 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 record the judgments in support of his case. Today, when the matter was taken up for hearing, Mr.Singh, learned advocate for the appellant, had placed on record few judgments and the same were permitted to be taken on record.
3.0. Mr.Singh, learned advocate has invited attention of this Court to the findings and the reasons recorded by the trial Court while passing the impugned order below Exh.1. He has submitted that the learned Magistrate ought not to have proceeded to pass the order of dismissal for non prosecution since the matter was notified in Lok Adalat. He further submitted that substantial injustice has been caused to the appellant inasmuch as the order has resulted into the acquittal of the respondent no.2- original accused without any decision on merits. He further submitted that the matter was pending at the stage of service of summons and considering the fact that the matter was placed before the Lok Adalat, the complainant was under the bonafide belief that his presence may not be required. He further submitted that the whole object of placing the matter in Lok Adalat is to amicably settle the matters by pursuing the parties, whereas in the given facts the learned Magistrate has proceeded to pass the order of dismissal for non prosecution, which laid down a bad precedent. He, therefore, urged this Court to remand the matter back to the learned Magistrate to decide the complaint on merits. While Page 3 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 explaining the absence of the complainant on previous occasions as noticed by the learned Magistrate, Mr. Singh submitted that the present appellant frequently travels out of India and therefore, it was difficult for the appellant to remain in touch with the Advocate and to pursue the proceedings diligently. He was of the belief that he had engaged a lawyer to represent his case and as and when the presence was required, he would appear on his behalf. In absence of instructions, he was not aware of the proceedings. He, therefore, submitted that the appellant may not suffer for the inaction on the part of the learned advocate.
4.0. On the other hand, Mr. Vicky Mehta, learned advocate for the respondent no.2- original accused has invited attention of this Court to the fact that the present appeal is filed at the instance of the Power of Attorney holder of the original complainant. He has further invited attention of this Court to the filing of the present appeal, which was registered on 21.09.2019 after condonation of delay pursuant to the order dated 19.3.2019 passed by this Court. He further submitted that leave to appeal along with appeal was preferred by the appellant after a delay of almost 216 days. He further invited attention of this Court to the recitals of the Power of Attorney and had made much emphasis on the fact that the said Power of Attorney was executed on 10.2.2018. The non judicial stamp Page 4 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 which was used in the said power of attorney was issued on 27.1.2017 and the power of attorney was given for attending Court proceedings of pending Criminal Case No.2079 of 2014 arising under Section 138 of the Negotiable Instruments Act. He therefore submitted that the power of attorney had no authority to present this appeal as the authority was only with regard to pending Criminal Case which stood dismissed for default prior to even execution of the aforesaid power of attorney i.e. on 09.09.2017. He submitted that the certified copy of the impugned judgment and order was applied on 7.3.2018. Thus, it can be presumed that the appellant was aware of the fact that the complaint stood dismissed for default since 7.3.2018.
5.0. Mr.Singh, learned advocate for the appellant-original complainant objected to the aforesaid submissions made by learned advocate for the respondent- original accused. He invited attention of this Court to the authority given by the original complainant as reflected in para 4 of the power of attorney and submitted that the authority to file appeal was also there and therefore, the present appeal is filed under a valid authority of the original complainant. He referred to and relied upon the copy of the passport of the complainant and has submitted that the appellant is a frequent traveler and during period 6.3.2017 to 20.09.2017, he had traveled abroad Page 5 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 and was not available in India. He, therefore, urged this Court that on the day when the impugned order was passed, the appellant was not available in the country.
6.0. Mr. Mehta, learned advocate took this Court to the impugned order and submitted that the original complaint relates to year 2014. After verification of the complainant, the learned Magistrate had proceeded to issue summons upon respondent no.2- accused. He took this Court to the Rojkam and submitted that since the first date of issuance of summons till the last entry recording the fact of dismissing of complaint for non prosecution, the case had remained unattended at the stage of service of summons. He further submitted that the appellant had failed to deposit the requisite process fees so as to proceed further to send the summons upon respondent no.2- accused. He further submitted that in absence of the complainant, at one stage, the Court had issued notice upon the complainant seeking his presence. Such notice had remained unserved and was received back with an endorsement that the complainant was not available as he has traveled abroad. He further submitted that the learned Magistrate has granted sufficient opportunity to the complainant, the matter has remained at the stage of service of summons for the past three years and ultimately, the Court was constrained to take recourse to Section 256(1) of the Code Page 6 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 of Criminal Procedure read with Section 204 of the Code of Criminal Procedure dismissing the complaint and record the order of acquittal of respondent no.2. In such circumstances, no error can be attributed to the learned Magistrate. He therefore urged this Court not to admit present appeal. 7.0. Mr. Singh, learned advocate for the appellant has relied upon the decision in the case of State of Gujarat vs. Kailashchandra Badriprasad reported in 2000(3) GLR 2487. By relying upon the aforesaid decision, he has submitted that once the leave to appeal is granted, the Court having been satisfied about prima facie case, the appeal is required to be admitted.
7.1. He has relied upon the unreported decision of the Coordinate Bench of this Court in the case of Arpan Rameshbhai Dalal vs. State of Gujarat rendered in Criminal Appeal No.424 of 2018 dated 18.4.2018. By relying upon the aforesaid decision, Mr. Singh has submitted that Section 256 of the Code of Criminal Procedure permits the Court to acquit the accused if the complainant does not remain present on stipulated date, when the date was appointed for appearance of the accused and if he does not appear, no fault can be found with the complainant or his pleader for not attending the Court proceedings. In such a case, exercise of powers for dismissal of matters for want of prosecution, that Page 7 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 too, in a Lok Adalat is required to be quashed and set aside. He also relied upon the decision of the Coordinate Bench in the case of Shreeji Enterprise through Amitbhai Nirubhai Shah vs. State of Gujarat rendered in Criminal Appeal No.316 of 2022 dated 19.09.2022. By relying upon the aforesaid decision, he has submitted that no party should be condemned unheard and the adjudication of the case should be on merits rather than on mere technicalities. He, therefore, urged this Court to restore the original complaint and to direct the learned Magistrate to decide the case on its own merits. 8.0. Having heard the learned advocates appearing for the respective parties and having perused the impugned judgment and order of acquittal and papers placed on record as well as the judgments relied upon by the learned advocate for the appellant, the only question which falls for consideration of this Court in the present appeal is that whether the learned Magistrate has committed an error in exercising the powers under Section 256(1) read with Section 204 of the Criminal Procedure Code by passing impugned judgment and order of acquittal of dismissed for default for non prosecution and acquitting the respondent no.2 for the offence punishable under Section 138 of the Negotiable Instruments Act. 9.0. At the outset, the Court takes notice of the preliminary Page 8 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 objection raised by the learned advocate for the respondent no.2 - original accused with regard to the maintainability of the appeal at the instance of the power of attorney of the original complainant. Indisputably, the power of attorney is executed on 10.02.2018, which is subsequent to the passing of the impugned order on 09.09.2017. It transpires from the extract of the passport which is placed on record, which indicates that the appellant had traveled abroad when this appeal was presented with the delay condonation, which came to be registered on 26.12.2019. Merely because, the recitals in the power of attorney refers to the authority being given to conduct the criminal case does not preclude the appeal being presented at the instance of the power of attorney holder as rightly pointed out by learned advocate for the appellant as reflected in para 4 which provides authority to conduct the appeal as well. I am therefore of the view that present proceedings are maintainable through the power of attorney holder of the original complainant.
10. Now, Section 256 of the Code of Criminal Procedure contemplates power of Magistrate for dismissal on default of the complainant or his pleader to appear on the date before the learned Magistrate. It provides that the Court may after issuance of summons, if the complainant does not appear, may proceed to acquit the accused unless for some reasons if he Page 9 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 thinks proper to adjourn the hearing of the case on some other day. Thus, these are the discretionary powers conferred upon the Court. However, such discretionary powers are to be exercised "judiciously". The Court takes notice of the few dates which have emerged on record from the Rojkam of the criminal case before the trial Court. The Criminal Complaint was presented before the learned Magistrate on 13.08.2018. The complainant was examined by the learned Magistrate and upon verification, summons were issued upon the respondent accused subject to deposit of requisite process fees. It transpires from the Rojkam that thereafter the trial had not progressed because of the non-payment of process fees for service of summons. Such a stage has continued all throughout till the date when the matter came to be dismissed for non prosecution. The Criminal Case had remained pending before the learned Magistrate for almost three years. At one stage, it is reflected that the notice was issued upon the complainant. Neither the complainant nor the learned advocate representing the complainant had appeared before the learned Magistrate. Ultimately, the matter was placed in Lok Adalat on 09.09.2017. The disinclination of the appellant- original complainant in participating in the Court proceedings had given reason to the learned Magistrate to consider the case being settled. In such circumstances, the case was put before the Lok Adalat. Page 10 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023
11. The reliance placed by the learned advocate on the decisions of this Court are the cases where the complainant had participated in the proceeding and due to circumstances beyond the control of the original complainant could not attend the Court proceedings.
11.1 In the case of Shreeji Enterprise through Amitbhai Nirubhai Shah (supra) was a case where the matter was listed at the stage of cross examination by the accused. At one stage the accused had started remaining absent, whereby application was submitted by the complainant to issue a warrant and thereafter onset of Covid-19 pandemic, physical hearing of the Courts were curtailed. It was in this peculiar facts and circumstances, this Court had observed that the trial Court ought not to have taken a hyper technical view and the original complaint was ordered to be restored. 11.2. In the case of Arpan Rameshbhai Dalal (supra) is concerned, the complainant case was transferred from one Court to the Court of learned Additional Chief Judicial Magistrate. The matter on a couple of occasions was adjourned. The notice to the complainant had returned unserved and once again the attempt was made to serve the complainant. It was a holiday when the matter was placed in the Lok Adalat. The reliance was made on the decision of the Page 11 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 Hon'ble Supreme Court where it is directed that no dismissal order should be made during Lok Adalat as Lok Adalats are only meant for parties to negotiate and arrive at an amicable settlement. It is in this background of facts, this Court had held that even if the complainant does not remain present on its stipulated date then also the powers under Section 256 of the Code of Criminal Procedure should not be invoked. This was a case where notice at one stage notice had been served on the complainant and complainant had chosen not to appear and despite issuance of notice when the matter was placed on a public holiday i.e. in special sitting of Lok Adalat, the Court took liberal view to meet the ends of justice and directed to restore the complaint with cost which is quantified at Rs.2500/-.
11.3. So far as last submission of the learned advocate for the appellant that the impugned order is without jurisdiction is concerned, attention of this Court was invited to the decision of the Hon'ble Supreme Court in the case of Estate Officer vs. H V Mankotia reported in AIR 2021 SC 4894. The Hon'ble Supreme Court was posed with the question as to whether it was open for the members of the Lok Adalat to enter into the merits of the writ petition and to dismiss the same on merits, in absence of any settlement arrived at Page 12 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 between the parties.
12. I have carefully gone through the aforesaid decisions relied upon by the learned advocate for the applicant - original complainant.
12.1. In the present case, except for filing of the complaint, the complainant had chosen not to participate in the proceeding and matter has remained pending at the stage of issuance of summons. The Court has almost invested three precious years in the judiciary. The explanation offered by the complainant of traveling abroad frequently and not remaining in contact with the advocate reflects the sheer negligence of the complainant towards the Court proceedings, which does not deserve any liberal view. So far as reliance placed by the learned advocate for the appellant on the decision of the Full Bench in the case of Kailashchandra Badriprasad (supra) is concerned, it is true that once leave to appeal is granted the Court having noticed prima facie case, then appeal is required to be admitted. However, in the present case, the Court had issued notice for final disposal calling upon the parties to decide the appeal finally. Learned advocates appearing for the respective parties have proceeded to conduct the appeal at the admission stage itself. In such circumstances, the reliance being made by the learned advocate of the appellant on the aforesaid decision Page 13 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 is nothing but an attempt to prolong the hearing of the present appeal. Even otherwise, from the record it transpires that the learned advocate has shown his disinclination in conducting the appeal by choosing to remain absent on a few occasions though this Court had issued notice for final disposal. In my view, with the circumstances emerging on record no error could have been attributed to the learned Magistrate in dismissing the complaint by invoking powers under Section 256 of the Code of Criminal Procedure.
12.2. The Court finds that certainly the court cannot ignore the object of the Act, which otherwise provides the proceedings under the Negotiable Instruments Act to be treated as summary in nature. The period of 3 years that too at the preliminary stage of service of summons in no manner can be treated as no sufficient opportunity being granted to the original complainant. In absence of such opportunity being utilized by the complainant cannot be expected to make a grievance that the appellant was not heard and the matter has been wrongly dismissed for default in absence of complainant or his pleader. The explanation offered by the learned advocate that the appellant was frequently traveling abroad and was not in contact with the advocate representing his case reflects his negligence.
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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 Page 15 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 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 Page 16 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 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. 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 Page 17 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023 R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 aforesaid count.
15. The impugned judgment and order of acquittal dated 09.09.2017 passed by the learned 7th Judicial Magistrate First Class, Ahmedabad (Rural), Mirzapur in Criminal Case No.2079 of 2014 is hereby quashed and set aside. The original complaint is directed to be restored back to its file. The learned Magistrate may proceed with the hearing of the matter from the stage it stood dismissed for default.
16. Considering the fact that the complaint relates to 2014 and the grounds raised by the original complainant through his power of attorney, the Court finds that it was for the complainant to pursue the proceeding diligently and to extend his cooperation for conducting the criminal case. The Court finds that non participation of the complainant has delayed the proceedings. The complainant had been negligent which has resulted into pendency of case for almost three years before the trial Court. Hence, the complaint is directed to be restored subject to payment of costs which is quantified for an amount of Rs.20,000/-, which may be deposited by the original complainant before the Gujarat State Legal Services Authority, High Court of Gujarat within a period of 30 days from the date of receipt of the copy of the present order. Learned Magistrate is directed to expeditiously conduct the proceedings and dispose of the same in accordance with law preferably within a period of three months from the date of receipt of present order.
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R/CR.A/1888/2019 JUDGMENT DATED: 14/06/2023 (NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 19 of 19 Downloaded on : Tue Jun 20 20:33:09 IST 2023