Himachal Pradesh High Court
Between vs Sh. Rajesh on 16 August, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
ON THE 16th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
Criminal Appeal No. 229 of 2021 a/w
Criminal Appeal Nos. 230 & 231 of 2021
1. CRIMINAL APPEAL No. 229 of 2021
Between:-
SHRI RAM TRANSPORT FINANCE
COMPANY LTD., REGISTERED OFFICE
AT 123, ANGAPPA NACIKEN STREET,
CHENNAI, BRANCH OFFICE AT ASHA
BHAWAN, OPPOSITE D-PARK HOTEL,
GHORA CHOWKI,
SHIMLA, H.P.
THROUGH ITS AUTHORIZED
REPRESENTATIVE SH. NEERAJ
KASHYAP.
....APPELLANT
(BY SH. ASHWANI KAUNDAL, ADVOCATE)
AND
RAJESH KASHYAP, S/O SH.
THAKUR DASS KASHYAP, R.O.
VILLAGE KRANTI HOME, P.O.
MASHOBRA, TEHSIL & DISTRICT
SHIMLA, H.P.
...RESPONDENT
(BY SH. RAJESH VERMA, ADVOCATE)
2. CRIMINAL APPEAL No. 230 of 2021
Between:
SHRI RAM TRANSPORT FINANCE
COMPANY LTD., REGISTERED
OFFICE AT 123, ANGAPPA
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2
NACIKEN STREET, CHENNAI,
BRANCH OFFICE AT ASHA
BHAWAN, OPPOSITE D-PARK
HOTEL, GHORA CHOWKI,
.
SHIMLA, H.P. THROUGH ITS
AUTHORIZED REPRESENTATIVE
SH. NEERAJ KASHYAP.
.......APPELLANT
(BY SH. ASHWANI KAUNDAL, ADVOCATE)
AND
RAJESH KASHYAP, S/O SH.
THAKUR DASS KASHYAP, R.O.
VILLAGE KRANTI HOME, P.O.
MASHOBRA, TEHSIL & DISTRICT
SHIMLA, H.P.
........RESPONDENT
(BY SH. RAJESH VERMA, ADVOCATE)
3. CRIMINAL APPEAL No. 231 of 2021
Between:
SHRI RAM TRANSPORT FINANCE
COMPANY LTD. REGISTERED
OFFICE AT 123, ANGAPPA NACIKEN
STREET, CHENNAI, BRANCH OFFICE
AT ASHA BHAWAN, OPPOSITE D-
PARK HOTEL, GHORA CHOWKI,
SHIML, H.P. THROUGH ITS
AUTHORIZED REPRESENTATIVE SH.
NEERAJ KASHYAP.
....APPELLANT
(BY SH. ASHWANI KAUNDAL, ADVOCATE)
AND
RAJESH KASHYAP, S/O SH. THAKUR
DASS KASHYAP, R.O. VILLAGE
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KRANTI HOME, P.O. MASHOBRA,
TEHSIL & DISTRICT SHIMLA, H.P.
........RESPONDENT
.
(BY RAJESH VERMA, ADVOCATE)
Whether approved for reporting?
__________________________________________________________
These appeals coming on for orders this day, the Court passed
the following:
JUDGMENT
Cr. MP(M) No. 1434 of 2020, Cr. MP(M) No. 1435 of 2020 &
Cr. MP(M) No. 1436 of 2020
Leave to appeal granted. The application stands disposed of
accordingly.
Criminal Appeal No. 229 of 2021 a/w
Criminal Appeal Nos. 230 & 231 of 2021
2. Be registered.
3. As agreed, the appeal is taken up for consideration today itself.
4. Admit.
5. Heard.
6. With the consent of the parties, these three appeals are being
disposed of by a common judgment.
7. Appellants herein are aggrieved by orders dated 14.12.2019,
passed by Bench No. 7, National Lok Adalat in Criminal Case No. 142-3 of
18/14, titled as Shri Ram Transport Finance Co. Ltd. Vs. Sh. Rajesh
.
Kashyap, Criminal Case No. 143-3 of 2018/14, titled as Shri Ram Transport
Finance Co. Ltd. Vs. Sh. Rajesh Kashyap and Criminal Case No. 144-3 of
18/14, titled as Shri Ram Transport Finance Co. Ltd. Vs. Sh. Rajesh
Kashyap,which reads as under:-
"14.12.2019
Present:
r to
Complainant not present.
Accused in person.
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 unexplained
absence of the complainant, proceeding with section
256 Cr. PC the proceedings are stopped and the accused
is acquitted. File after due completion be consigned to
the record room."
8. It appears that the appellants herein had filed complaints under
Section 138 of the Negotiable Instruments Act against the present
respondent, which were pending adjudication before the learned Trial Court.
During the course of trial, the complaints were referred for the purpose of
settlement to the National Lok Adalat, scheduled for 14.12.2019. On the said
date, as none appeared on behalf of the appellants/complainants before the
National Lok Adalat, it invoked the provisions of Section 256 of the Code of
.
Criminal Procedure and stopped the proceedings in the complaints and
ordered the acquittal of the accused.
9. Feeling aggrieved, the appellant has preferred these appeals.
10. The moot issue, subject matter of these appeals is no more res
integra, as in a similar case, arising out of a complaint filed under Section
138 of the Negotiable Instruments Act by the present appellant, in which
also, the National Lok Adalat passed a similar order on 14.12.2019, this
Court vide judgment dated 02.08.2021, passed in Criminal Appeal No. 200
of 2021, titled as Shri Ram Transport Finance Company Vs. Mukund Lal has
held that in view of the Scheme of the Legal Services Authorities Act, 1987,
National Lok Adalat neither has been conferred the powers envisaged under
Section 256 of the Code of Criminal Procedure nor it has any power or
authority to order acquittal of an accused in the event of non-appearance of
the complainant before it, as in such like situation, the only alternative with
th National Lok Adalat is to refer the matter back to the Court which referred
the same to the National Lok Adalat for settlement. Relevant paras of the
judgment dated 02.08.2021, passed in Criminal Appeal No. 200 of 2021,
titled as Shri Ram Transport Finance Company Vs. Mukund Lal are quoted
hereinbelow:
"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:-
"(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 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 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 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,
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 prosecuting31.
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 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 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 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."
.
11. In this view of the matter, as these appeals are squarely covered
by the judgment dated 02.08.2021, passed by this Court in Criminal Appeal
No. 200 of 2021, titled as Shri Ram Transport Finance Company Vs.
Mukund Lal, the same are allowed by observing that the findings returned in
Criminal Appeal No. 200 of 2021 shall mutatis mutandis apply to the present
appeals also. Orders dated 14.12.2019, passed by National Lok Adalat,
Bench No. 7 in Criminal Case No. 142-3 of 18/14, titled as Shri Ram
Transport Finance Co. Ltd. Vs. Sh. Rajesh Kashyap, Criminal Case No. 143-
3 of 2018/14, titled as Shri Ram Transport Finance Co. Ltd. Vs. Sh. Rajesh
Kashyap and Criminal Case No. 144-3 of 18/14, titled as Shri Ram
Transport Finance Co. Ltd. Vs. Sh. Rajesh Kashyap, 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 therein, are quashed and set
aside and the matters are remanded back to the appropriate Court from
which these cases stood referred to the National Lok Adalat, with the
direction that the Court shall proceed with the matters from the stage from
which the same were referred to the National Lok Adalat, in accordance with
law. Pending miscellaneous application(s), if any, also stand disposed of.
.
(Ajay Mohan Goel)
Judge
August 10, 2021
(bhupender)
r to
