Gujarat High Court
M/S Chunilal Chhaganlal Mehta Thro ... vs Shree Sagar Industries on 20 February, 2024
NEUTRAL CITATION
R/CR.A/423/2024 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 423 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed NO
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 YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S CHUNILAL CHHAGANLAL MEHTA THRO RAJENDRAKUMAR
NATWARLAL MEHTA
Versus
SHREE SAGAR INDUSTRIES & ORS.
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Appearance:
JAYDEEP H SINDHI(9585) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
MR. HARSHAD D BAROT(7287) for the Opponent(s)/Respondent(s) No. 2,3
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 20/02/2024
ORAL JUDGMENT
1. This appeal is filed challenging the judgment and order of
acquittal passed under Section 138 of the Negotiable
Instruments Act by the learned Additional Judicial Magistrate
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R/CR.A/423/2024 JUDGMENT DATED: 20/02/2024
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First Class, Himmatnagar dated 13.05.2023 in Criminal Case
No.5253 of 2014.
2. It is the case of the complainant that the complainant is
the wholesaler and doing the business in the name and style of
'M/s.Chunilal Chhaganlal Mehta'. The respondents - accused are
running the ginning factory and were having the business
relations with the complainant. The accused purchased the
cotton from the complainant and for the payment of the said
goods, the cheque of Rs.3,54,611/- was issued in favour of the
complainant. On depositing the said cheque, it was returned
with an endorsement of "excess amount than the permissible
limit". Thereafter, on following the procedure prescribed under
the Negotiable Instruments Act, the private complaint came to
be filed before the competent Court.
3. The learned trial Court has issued the summons after
recording the verification on 26.09.2014. Thereafter, the case
was adjourned from time to time. On 13.05.2023, when the
impugned order was passed, there was a lok adalat and the
learned trial Court has dismissed the complaint by exercising
the power under Section 256 of the Code of Criminal
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Procedure, which is impugned before this Court.
4. Heard learned advocate Mr.Jayeep Sindhi for the
complainant and Mr.Harshad Barot for the private respondents.
5. Learned advocate Mr.Sindhi submits that the case was at
the stage of service of summons on the accused and was
referred to the lok adalat which was held on 13.05.2023. The
learned advocate submits that on the day when the impugned
order was passed, the complainant or his advocate remained
absent but, the learned trial Court in a special sitting, passed
the impugned order which is beyond the power and, therefore,
the same is required to be quashed and set aside.
6. As against the same, learned advocate Mr.Barot is not
able to dispute the fact that the impugned order was passed
by the learned trial Court in a lok adalat sitting. However, the
learned advocate submits that not only on the occasion when
the impugned order was passed but, as per the rojkam, it
reflects that on number of occasions, the complainant and his
advocate remained absent, therefore, the learned trial Court
has exercised the power in special sitting and passed the
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impugned order and, therefore, it was prayed not to interfere
with the order and dismiss the appeal.
7. Considering the submissions advanced by the learned
advocates for the respective parties, from the rojkam, it
transpires that on 13.05.2023, the following entry was made:-
"Today, in the lok adalat, exh.1 order passed dismissing
the complaint because of default on the part of the
complainant."
8. This order deserves to be interfered for more than one
reasons that;
(i) The order was passed by the learned trial Court in a lok
adalat.
(ii) The order of dismissal of the case for want of prosecution
is not permissible when the Court is sitting in a lok adalat.
(iii) It is a settled law and on couple of occasions, the Apex
Court and even this Court had also categorically directed that
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no dismissal order can be made during the lok adalat. The lok
adalat is meant for parties to negotiate and arrive at an
amicable settlement. For adjudication of matter on merits or
for that matter, any dismissal for want of prosecution, the
same is permissible on a full-fledged Court on working day. In
other words, it is also impermissible on a holiday or in lok
adalat, in special sitting to dismiss any complaint under
Section 256 of the Code of Criminal Procedure, as has been
done in the instant case.
(iv) Section 256 of the Code of Criminal Procedure permits
the Court to acquit the accused if the complainant does not
remain present on a stipulated date, when the date was
appointed for appearance of the accused and if he does not
appear, the learned Magistrate is authorized to acquit the
accused unless for some reason, he thinks it proper to adjourn
the hearing of the case to some other day. It is also provided
further in the proviso of the Section that where the
complainant is represented by a pleader or by an officer
conducting the prosecution, or where the Magistrate is of the
opinion that personal attendance of the complainant is not
necessary, he may dispense with the attendance and proceed
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with the case. Thus, this proviso also provides for acquittal of
the accused if the complainant chooses not to appear on the
stipulated date.
9. From the rojkam, it appears that the complainant
remained absent on couple of occasions and even the accused
also not remained present. As observed by the learned trial
Court, the stage of the trial was for service of the summons to
the accused. Therefore, the Court should see that if the
presence of the complainant on the date when the complaint
was fixed for hearing, was essential for the purpose of
prosecuting the case where, the case was pending for Court
primarily to secure the presence of the accused, the learned
trial Court was not justified in dismissing the complaint for non-
appearance of the complainant.
10. It is very unfortunate to note that the learned trial Court
took a very easy and convenient way rejecting the matter
rather than conducting the case on merits.
11. Therefore, this Court is of the view that exercise of the
power for dismissal of the complaint for want of prosecution in
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a lok adalat is impermissible and, therefore, the impugned
judgment and order is required to be quashed and set aside.
12. Resultantly, the appeal is allowed. The judgment and
order passed by the learned Additional Judicial Magistrate First
Class, Himmatnagar dated 13.05.2023 in Criminal Case
No.5253 of 2014 is quashed and set aside. The learned trial
Court shall restore the matter being Criminal Case No.5253 of
2014 to its original file.
13. Record and Proceedings be sent back to the concerned
learned trial Court.
(M. K. THAKKER,J)
Hitesh
