JUDGMENT :

1. Heard. Admit. The present appeal is taken up for final hearing on merit with the consent of both sides.

2. The appellant-complainant preferred the present appeal by invoking the remedy under Section 378 of the Code of Criminal Procedure, 1973, and agitated the validity and legality of the impugned order passed by the learned Judicial Magistrate, First Class, Nilanga, dated 07th April, 2016, for acquittal of the respondent-accused in the proceedings of SCC No. 565 of 2012, filed under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act).

3. The factual matrix of the matter in nutshell is that, the appellant was doing the business of building materials. The respondent-accused came in contact with the appellant through common friends. The accused was in employment as Headmaster in the educational institution. Being cordial relation, the appellant allowed respondent-accused to purchase building materials worth of Rs.1,65,400/- for the construction of school. But, thereafter, no response from the respondent-accused for payment of cost of building material. The appellant insisted for price of building material. Eventually, respondent-accused issued a cheque of Rs.1,65,400/- in favour of appellant-complainant. But, it was dishonoured for lack of funds. The statutory notice was issued to the respondent, but, there was no response. At last, the appellant initiated penal action against the respondent-accused under Section 138 of N.I.Act bearing SCC No. 565 of 2012. The learned Magistrate issued process against respondent-accused. Thereafter, the matter was listed for further process. The learned Magistrate recorded the particulars of offence by explaining the accusation to the accused on 26-04-2013 and matter was kept for adducing the evidence on behalf of complainant. However, since 17-08-2015, there was no progress into the matter for evidence on behalf of appellant-complainant. Eventually, the circumstances constrained the learned Magistrate to dismiss the complaint for want of prosecution and passed the impugned order, which is the subject matter of present appeal.

4. Learned counsel for the appellant fervidly contends that the impugned order of dismissal of the complaint for want of prosecution was erroneously, illegal and not within the purview of law. The appellant-complainant could not attend the proceedings for lack of communication from his Advocate. Learned counsel contends that the appellant-complainant should not be suffered due to the mistake committed on the part of his counsel. The complainant has an merit in the proceedings. The respondent-accused committed mischief by issuing the cheque without sufficient balance in his bank account. Therefore, learned counsel for the appellant requested to quash and set-aside the impugned order and complaint be allowed to restore at it's original stage.

5. Having given anxious consideration to the rival submission, I do not find any substance in the contentions propounded on behalf of appellant. It is to be noted that the appellant initiated the penal proceedings against the respondent-accused in the year 2012. After compliance of procedural formalities of recording plea, etc., the proceedings was on the cause list for recording evidence of complainant since year 2013, but, there was no progress into the matter. The circumstances on record constrained the learned Magistrate to pass the order of dismissal of complaint for want of prosecution, which is reproduced as below :-

"In view of the letter of the Hon'ble High Court No. : B(Gen)-1001/2016/444 dated 30-03-2016 and circulated by Hon'ble District Court, Latur Letter No. 5411/2016 dated 04/04/2016 and letter of Maharashtra State Legal Authority No. MSLSA/2016/ 519 dated 23/03/2016, this case is identified for keeping in Special Drive. Matter called out repeatedly. Complainant and his counsel absent. It is pending for evidence of complainant since 17/8/15. Complainant sought adjournments on 3/9/15, 6/10/15, 22/3/16 by