1. The present appeal under Section 378(4) of the Code of Criminal Procedure, 1973 (‘the Code’ for short) has been preferred, challenging the judgment and order dated 06.08.2012, passed by the learned Judicial Magistrate, First Class, Court No.1, Vadodara, in Criminal Case No.4708 of 2009, whereby the complaint of the appellant (original complainant) under Section 138 of the Negotiable Instruments Act, 1881, has been dismissed for default and respondent-accused No.1, has been acquitted.

2. The brief facts of the complaint are that the appellant is a businessman from Vadodara and respondent No.1-accused is the wife of his friend. Because of cordial relations between the appellant and the husband of respondent No.1, an amount of Rs.5,00,000/-was borrowed by respondent No.1 from the appellant. Respondent No.1 issued a cheque dated 18.05.2009 for an amount of Rs.5,00,000/-, bearing No.090034, drawn on Indian Overseas Bank, Kalali Branch, Vadodara, against the amount borrowed by her with an assurance that it would be honoured as and when presented. The appellant presented the cheque to the Bank of Baroda, Laheripura Branch, New Road, Vadodara, on 20th June, 2009. The cheque came to be dishonoured by the Bank of respondent No.1, which was communicated to the appellant vide memo dated 22.06.2009, with an endorsement “Today’s opening balance insufficient”. The appellant issued a statutory demand notice to respondent No.1 on 18.07.2009, which was received by respondent No.1 on 18th July, 2009. Respondent No.1 failed to comply with the demand or reply to the notice within the period of time specified by the provisions of the Negotiable Instruments Act, 1881. The appellant, therefore, filed the above-mentioned criminal case before the learned Magistrate.

3. The plea under Section 251 of the Code was recorded wherein respondent No.1-accused claimed to be tried. The trial commenced and the appellant was examined and relevant documents were exhibited. Upon completion of the Examination-in-Chief, in the first sitting of the Court on 06.08.2012, the matter was kept for Cross-Examination in the second sitting. Both the complainant and his advocate were present in the first sitting on that day. However, in the second sitting, the appellant was present but his advocate was not present. The learned Magistrate, therefore, instructed the appellant to call his advocate. The appellant went to call the advocate but he was not found in the Court premises.

4. In the above circumstances, the learned Magistrate has passed the impugned order dated 06.08.2012, giving rise to the present appeal.

5. Mr. Hardik J. Jani, learned advocate for Mr. A.Y. Kogje, learned counsel for the appellant, submits that the learned Magistrate has wrongly observed in the impugned order, that the intention of the appellant is to prolong the case. It ought to have been noted by the learned Magistrate that both the appellant and his advocate were present before the Court during the first sitting. It is only in the second sitting that the learned advocate for the appellant was not present. The appellant has been present throughout the day, except for the period during which he had gone to call his advocate in the second sitting. It is submitted that the appellant has a good prima-facie case which ought to have been decided on merits, instead of which the learned Judge has dismissed the complaint for default and acquitted the accused. It is further submitted that on 06.08.2012, the appellant had stepped into the witness box and his examination-in-chief had been concluded in the first sitting. The matter was kept in the second sitting for Cross- Examination, which shows that the appellant had no intention to prolong the case. It is only on the ground that the learned advocate for the appellant was not present that the learned Magistrate has passed the impugned order, which would cause great hardship and prejudice to the appellant.

6. Learned counsel for the appellant has placed re