The main legal point established is the discretion of the court to adjourn the hearing and the emphasis on deciding cases on merits with a judicial approach rather than dismissing them for default.

JUDGMENT :

1. The appellant-(original complainant) has filed this criminal appeal under the provisions of Section 378 of the Criminal Procedure Code,1973 (the Code) against the order dated 23.1.2020 passed by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No. 37901 of 2018 whereby, the same was dismissed for default, for want of non prosecution on behalf of the complainant and the accused is acquitted.

2. Heard learned advocate Mr. Bhavik Samani for the appellant, learned APP Mr. Ronak Raval for the respondent No.1- State. Rule is not received back qua the respondent No.2.

3. Brief facts of the case on hand are that a private complaint has been filed by the current appellant, who is registered under the Banking Companies Act along with necessary evidence, under Section 138, 141 and 142 of the Negotiable Instruments Act against the respondent No.2. That, on 17.04.2018 as the cheque given by the respondent to the appellant for an amount of Rs.12,93,596/- by which the appellant has given loan. That, after verification the case came to be registered as Criminal Case No.37901 of 2018. That, after due verification the learned Trial Court issued process vide order dated 17.04.2018. That, learned Magistrate recorded the plea of the accused person and the accused had not pleaded guilty and claimed his innocence and prayed for the trial. That, trail has been conducted and the respondent was not found guilty due to absence of the prosecution as the complainant was not present. That, the respondent No.2 is the original accused, who has failed to honor his legal debt to the tune of Rs.12,93,596/- taken as loan. That, on 9.12.2019, the advocate was himself has filed a retirement application and hence in the absence of the complainant the authorized personal was relieved of his responsibility by the company and have been transferred and hence, the nominated a new power of attorney, who was unaware of the next date as the advocate had retired, hence, due to the miscommunication the complainant was unable to remain present.

4. Learned advocate for the appellant submitted that the impugned order dismissing the case and thereby, acquitting the accused is bad, unjust, improper, under misconception of law and facts, against the evidence available on record and contrary to the settled legal position of law. He also submitted that impugned order is manifestly erroneous and demonstrably unsustainable.

4.1 The learned advocate for the appellant submitted that the prosecution has not been given any chance to prove the case beyond all the reasonable doubts against the present opponent No.2 for all the offences charged against him and therefore, the learned trial Court ought not to have acquitted the present respondent -accused without hearing the prosecution or issuing any notice to the appellant.

4.2 The learned advocate for the appellant submitted that since the learned trial Court has not properly considered the oral and documentary evidence as the complainant was not allowed to lead the evidence since, the matter was dismissed due to absence of prosecution. He has further submitted that looking to the oral and documentary evidence, if they were allowed to be taken on record, the learned trial Court could have convicted the present respondent No.2. He submitted that the learned Trial Court ought to have appreciated that the prosecution was not allowed to prove that there existed a legal debt that occurred due to the loan being availed by the accused and in-lieu of his failure to pay in time the cheque was issued and it was returned as “Account Blocked” on 05.02.2018.

4.3 Learned advocate for the appellant submitted that instead of passing order under Section 256 of the Criminal Procedure Code and learned trial Court has ought to have passed order on merits as held by the Hon’ble Apex Court that each and every matter should be decided on merits and not on such technical ground. He further submitted that the lear