IMPORTANT POINT
A litigant's absence due to unforeseen circumstances, such as a pandemic and lack of counsel communication, should not result in dismissal of their case without consideration of the merits.

JUDGMENT/ORDER

1. Heard learned counsels for the parties.

2. This appeal is filed under Sec. 378 (4) of the Code of Criminal Procedure, 1973 against the impugned order passed in Summary Criminal Case No. 14103/2018 by which the complaint is dismissed under Sec. 256 of the Code of Criminal Procedure for absence of complaint and the accused is acquitted under Sec. 138 of Negotiable Instruments Act.

3. By this appeal, the appellant is also seeking leave to file an appeal against the order of acquittal of respondent/ original accused passed by the learned 17th Joint Civil Judge, Senior Division and Additional Chief Judicial Magistrate (Special Court-138 N.I. Act), Nagpur in Summary Criminal Case (SCC) No. 14103/2018 dtd. 5/8/2022.

4. As per the contention of the appellant, the appellant and respondent Nos. 1 and 2 were acquainted with each other through one Parag Vasantrao Khati. The appellant was in search of a Government Job and this fact was known to the accused i.e. respondents. The respondents promised the appellant that, they will help the appellant in seeking Government Job and demanded Rs.5, 00, 000.00 from the appellant. On 04/03/2014, the appellant has deposited Rs.3, 00, 000.00 in the bank account of respondents bearing No. 7313 in Bank of Baroda. Again on 7/3/14, the appellant has deposited Rs.1, 00, 000.00, and on 11/3/2014 another Rs.1, 00, 000.00 was deposited. Thereafter, the brother-in-law of the respondent No.1 has sent a forged appointment letter to the appellant. The appellant contacted the concerned department and it revealed to him that, the forged appointment letter is issued to him. He lodged the report at Police Station Pratap Nagar, Nagpur. The respondents were called by the Police for inquiry and the respondents admitted that they will repay the amount of Rs.6, 70, 000.00 to the appellant. In discharge to the aforesaid liability, the respondent Nos. 1 and 2 have issued three cheques drawn on the Bank of Baroda Nagpur Branch of Rs.2, 50, 000.00, 2, 50, 000/- and Rs.1, 70, 000.00 receptively vide cheque nos.000169 dtd. 30/11/2017, 000170 dtd. 30/01/2018 and 000171 dtd. 30/03/2018. The appellant presented the above cheques in his account but all the cheques are dishonoured with an endorsement of "funds insufficient". Thereafter, the appellant has issued the notice on 19/05/2018, the said notice was received by the respondent Nos. 1 and 2 on 04/06/2018 but the respondents failed to repay the amount, and therefore, the appellant has filed a criminal complaint under Sec. 138 of Negotiable Instruments Act.

5. The learned trial Court has taken cognizance of the said complaint and issued the process against the present respondents, the present respondents appeared in the case. Subsequently, the appellant has filed the affidavit of examination-in-chief. However, due to the Covid Pandemic situation, he could not remain present and therefore, the Court has dismissed the complaint by passing order on 05/08/2022, observing that the appellant is continuously absent, which shows that he is not interested and by invoking powers under Sec. 256 Code of Criminal Procedure, the complaint was dismissed and the respondents are acquitted.

6. As per the contention of the appellant that due to Covid-Pandemic situation, he could not attain the proceedings. He further submitted that his counsel did not inform him about the date. He contended that on 16/04/2020 itself, he has filed an affidavit on examinationin-chief. The Covid restrictions were imposed in March 2020 itself and therefore, he could not approach either to his counsel or the Court. His counsel did not take any effort to inform the appellant the dates and to attend the matter, due to which he remained absent. The absence was not intentional one. The appellant has already lost the amount of Rs.5, 00, 000.00, though he was not in service under the acceptance of getting Job. He neither got the job, but he lost his amount, considering the same opportunity be granted to the appell