1. The present appeal is directed against the judgment and order dated 29.10.2012, passed by the learned 9th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar (hereinafter referred to as the “Trial Court”), in Criminal Case No.2100 of 2012, whereby, the complaint of the appellant (original complainant) under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short), has been dismissed in exercise of power under Section 256 of the Code of Criminal Procedure, 1973 (“the Code” for short), resulting in the acquittal of respondent No.2 – original accused.

2. The brief facts of the case as emerging from the record are that, the appellant and respondent No.2 were known to each other. As per the version in the complaint, respondent No.2 required money for business purposes and borrowed an amount of Rs.2 lakhs from the appellant. Respondent No.2 gave an Account Payee Cheque No.416537 dated 01.02.2012 of the Commercial Cooperative Bank Limited to the appellant towards this debt. This cheque was dishonoured by the Bank on 14.12.2012, on the ground of “insufficient funds”. The appellant issued a notice to respondent No.2 on 21.02.2012, by Registered Post A.D., which was received by respondent No.2 on 23.02.2012. The accused neither replied to the notice nor paid the amount borrowed from the complainant, which led to the filing of the complaint under Section 138 of the Act on 05.04.2012.

3. The plea under Section 251 of the Code came to be recorded on 17.07.2012 at Ex.7. Thereafter, on 21.08.2012, the learned advocate for the appellant sought time to produce evidence, which was granted by the Trial Court. The next date for the case was fixed for 28.09.2012. On that day, neither the appellant nor his advocate remained present but the accused was present. The case was adjourned to 09.10.2012 and thereafter, to 17.10.2012. On both these dates, the complainant and his advocate were not present. The accused was present on both dates. The impugned order dismissing the complaint was passed on 29.10.2012. It is recorded in the said order that neither the appellant nor his advocate had remained present till 5:30 in spite of the matter being called out repeatedly. It is recorded that, as the complainant has not remained present for a long time, he is not interested in prosecuting the case. The Trial Court proceeded to dismiss the complaint, in exercise of power under Section 256(1) of the Code, giving rise to the present appeal.

4. Mr. Premal S. Rachh, learned advocate for the appellant, has submitted that the impugned judgment and order of acquittal is unjust and contrary to the settled legal position. The Trial Court has failed to appreciate the facts and provisions of law in proper perspective, therefore, the impugned order is unsustainable in law. It is further submitted that the learned advocate for the appellant had sought time on 21.08.2012, for the purpose of producing evidence. The Trial Court had allowed the request and kept the matter on 28.09.2012. However, due to a bona fide mistake and inadvertence, the advocate for the appellant failed to post the next date of hearing, that is, 28.09.2012, in his case diary. In the circumstances, he was unaware of the next date and could not remain present on that date and the three subsequent dates fixed by the Trial Court. It is submitted that it is only in the first week of December, 2012, when the appellant contacted his advocate to inquire regarding the next date of hearing, that the advocate checked up the status and realized the aforesaid mistake. Learned advocate for the appellant further submits that the appellant has a good case on merits and the Trial Court ought not to have exercised power under Section 256 of the Code in such a mechanical manner. Moreover, the appellant ought not to be penalized for the oversight or mistake committed by his advocate. It is submitted that the impugned order has caused great hardship and prejudice to the