Shri Ram Transport Finance ... vs Mukund Lal
2021 Latest Caselaw 3316 HP

    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?

assailed 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

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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.

9. 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,

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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

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

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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

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.

17. Section 20 of the said Act deals with cognizance of

cases by Lok Adalats and sub-section (1) of the same provides as

under:-

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"(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

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

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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

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

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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.

26. 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

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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,

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,

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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".

30. 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

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

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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

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

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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

Industries Corporation Ltd. vesus M.P.S. Chawla, 1997 (2) Crimes

591.

33. In view of the discussion held hereinabove, this appeal

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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