Ram Transport Finance Company Ltd vs Rajesh Kashyap

Ajay Mohan Goel, J

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

Be registered.

As agreed, the appeal is taken up for consideration today itself.

Admit.

Heard.

With the consent of the parties, these three appeals are being disposed of by a common judgment.

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: 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.â€​

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.

Feeling aggrieved, the appellant has preferred these appeals.

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.

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.

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.

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.â€​

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.

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.

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).

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.

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.

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.

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.

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.

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.

There is yet another important aspect of the matter, which this Court shall dwell at this stage.

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.

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 invitumâ€​.

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 “CrPCâ€) 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.

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.

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.â€​

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.â€​

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.