ORDER :

1. The present appeals have been filed under section 378 of the Cr.P.C., which are preferred against the order dated 20.04.2022 in Criminal Case Nos.92 of 2021 and 91 of 2021 respectively, which came to be dismissed for default under section 256 of Cr.P.C.

2. Mr. Muhammadyusuf M.Kharadi, learned advocate for the appellants referring to the rojnama of the proceedings submitted that, prior to registering the complaint criminal inquiry was undertaken by registering the matter as Criminal Inquiry Case Nos.03/2021 and 02/2021 respectively. The learned trial Court Judge was pleased to entertain the complaints, and by referring to the judgment of Hon’ble Apex Court in Indian Bank Association Vs. Union of India, reported in (2014) 5 SCC 519, took cognizance of the matter under section 138 of the N.I. Act and ordered to issue summons against the accused making it returnable on 15.09.2021, and thereafter the case was registered as Criminal Case Nos.92 of 2021 and 91 of 2021 respectively on the very same day.

2.1 Mr. Kharadi submitted that the complaint was exhibited as Exhibit-1; Vakalatnama, on record, at Exhibit-2; list of documents were produced vide a list at Exhibit-3, Affidavit of examination-in-chief at Exhibit-4 and Exhibit-5 was an application on record for exhibiting the documents produced by list. Mr. Kharadi submits that the proceedings show that the summons was issued, but since it could not be served, by Exhibit-6 on 08.12.2021, fresh address of the accused was provided and after an order below Exhibit-7, hand packet for the summons was received by the complainant, but when the accused failed to appear before the Court on 23.02.2022, bailable warrant was issued against the accused, which was made returnable on 09.03.2022.

2.2 Mr. Kharadi submits that the Advocate for the complainant had remained present on that day, but the warrant remained unserved; hence, on the next adjournment i.e. on 30.03.2022, prayer was granted to hand over the hand packet of bailable warrant to the complainant vide order below Exhibit-8, and the matter was adjourned to 20.04.2022, and to utter surprise of the complainant, the learned trial Court Judge dismissed the complaint by passing an order below Exhibit-1 considering it as default on the side of the complainant.

2.3 Mr. Kharadi further submitted that the learned Judge had failed to appreciate his own proceedings when the matter was for the service of bailable warrant of the accused, but instead, had preferred to dismiss the complaint, though the advocate for the complainant was present before the Court. Mr. Kharadi submits that the only cause, which has been noted by the Judge, is that the complainant had not taken the hand packet of the warrant, which was ordered to be issued and the absence of complainant was noted while observing that the Advocate on record of the complainant was present before the Court, but has made no submission in connection with the complaint, and thus found the conduct of the complainant as of being not interested in proceeding the matter and, therefore, the learned trial Court Judge dismissed the complaint.

2.4 Mr. Kharadi submits that the order itself is bad in law, is against the provisions of section 256 of Cr.P.C. The complainant was represented by an Advocate on record. The proceedings were for the service of bailable warrant, which exercise was actually required to be undertaken by the Court, but since the summons could not be served to the accused, the complainant had volunteered to take the hand packet of the bailable warrant to be presented before the concerned police station to get it served. Mr. Kharadi states that the dismissal of the compliant as default has been considered as negligence of the complainant, which required to be quashed and set aside.

2.5 Mr. Kharadi in support of his submission relief on the judgment of (i) Associated Cement Co. Ltd. Vs. Keshvanand, reported in (1998) 1 SCC 687, (ii) Ratanlal Gulabchand Gupta Vs. Sahara Sev. Gruh Udyog