JUDGMENT :

1. The present appeal under Section 378 of the Code of Criminal Procedure 1973 is preferred against the judgment and order dated 30.12.2023 passed by the learned Judicial Magistrate, First Class, Vadodara in Criminal Case No. 5071 of 2009.

2. Heard Mr. Hardik Jani learned advocate for the appellant. Though served, none appear for respondent Nos 2 & 3.

3. Mr. Jani learned advocate submits that the learned trial Court Judge has dismissed the criminal complaint for default filed under Section 138 of the N.I.Act and acquitted the accused, observing that neither the appellant nor his Advocate had remained present on that day nor on the earlier dates and in the interest of justice, matter was adjourned and on the day of dismissal, no application was moved for adjournment; thus, on the ground of default of the complainant, matter stood dismissed.

3.1 Mr. Jani submits that as per the Rojnama, the Affidavit of Examination-in-chief was produced on record and documentary list was also produced on 10.03.2011 with a prayer to Exhibit the documents vide Exhibits-12, 13 & 14 respectively. After hearing the parties, the relevant documents were exhibited and the matter was kept for cross-examination of the complainant. Mr. Jani submits that the proceedings suggest that, neither from the side of the complainant or of the accused, adjournment applications were given, and then on 22.02.2013, the cross-examination begun in Criminal Case No.4707 of 2009, and for further cross-examination the matter was adjourned for a long period, as the Court was on leave.

3.2 Mr. Jani further submitted that Exhibit-37 was a pursis by the accused praying for closing of the evidence of the complainant, but the learned trial Court Judge posted the matter for further cross-examination. Mr. Jani submitted that the learned trial Court Judge instead of dismissing the matter for default should have closed the stage of evidence of the complainant and ought to have posted it for the stage of defence, which could have given a scope for the complainant to get his right reopen, instead of that, the learned trial Court Judge went on to dismiss the matter.

3.3 Mr. Jani placed reliance on the judgments of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 and Ratanlal Gulabchand Gupta Vs. Shara Sev Gruh Udyog Bhandar & Ors. reported in (2001) 4 GLR 2987, to submit that the Magistrate is not justified in acquitting the accused, unless the presence of the complainant on that day found necessary. Mr.Jani submitted that since the complainant was represented by Advocate on record, the learned trial Court Judge should have proceeded with the matter. He submits that the matter could not be dismissed even on the absence of Advocate engaged on record, as the complainant should not be penalized for the negligence of the Advocate. Mr. Jani submitted that the learned trial Court Judge ought to have considered that the matter was for further cross-examination and should have considered that there was no callousness or negligence from the side of the complainant, and if at all, the learned trial Court Judge on the very day of dismissal, found the presence of the complainant necessary, then necessary direction ought to have been passed.

4. The case of Indian Bank Association Vs. Union of India, reported in (2014) 5 SCC 519; was filed under section 138 of the N.I. Act, where the Hon’ble Apex Court has given directions, which are as under :

“(1) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the NI Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The Cour