Dipeshbhai Valjibhai Patel vs State Of Gujarat
2023 Latest Caselaw 3851 Guj

       R/CR.A/696/2023                               ORDER DATED: 03/05/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 696 of 2023

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                            DIPESHBHAI VALJIBHAI PATEL
                                      Versus
                                 STATE OF GUJARAT
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Appearance:
MR KRUNAL D PANDYA(3283) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 03/05/2023

                                   ORAL 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

R/CR.A/696/2023 ORDER DATED: 03/05/2023

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 non-

appearance 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

R/CR.A/696/2023 ORDER DATED: 03/05/2023

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. 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






       R/CR.A/696/2023                          ORDER DATED: 03/05/2023

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.

       R/CR.A/696/2023                          ORDER DATED: 03/05/2023




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

R/CR.A/696/2023 ORDER DATED: 03/05/2023

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.

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

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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.

R/CR.A/696/2023 ORDER DATED: 03/05/2023

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

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

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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. 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

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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

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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.

(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.

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(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. 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

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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. It

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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

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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.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA