JUDGMENT :

1. The present appeal is filed for quashing and setting aside the order dated 09.05.2022 passed in Criminal Case No.6575/2021 by the 3rd Additional Judicial Magistrate, First Class, Palanpur, Banaskantha, whereby the same came to be dismissed for default.

2. The rule was served, however, none appeared from the side of respondent no.2 – original accused.

3. Mr. Harshad K.Patel, learned advocate for the appellant relying on the judgments of S.Anand Vs. Vasumathi Chandrasekar, reported in (2008) 4 SCC 67 and Harisinh Bhagwatsinh Sarvaiya Vs. State of Gujarat, reported in 2013 (3) GLR 2723, submitted that the dismissal on the ground of default of complainant is an invalid order and the case should have been disposed of on the merits of the matter, when already evidence in the form of affidavit was produced on record vide Exhibit-4 and the list of documents in support of the case was produced at Exhibit-3, and the complainant had also urged the Court to Exhibits those documents by filing application, Exhibit-5.

3.1 Advocate Mr. Patel further submitted that the Advocate had diligently pursued the matter since the case was instituted on 18.12.2021, and the learned trial Court after noting the verification of the matter had passed an order for issuance of summons to the accused on 28.12.2021 adjourning the matter for appearance of the accused on 25.01.2022. Mr. Patel submitted that on 07.03.2022, vide Exhibit-6, plea was recorded and the matter was adjourned to 05.04.2022, and the Rojnama of that day reflects that vide Exhibit-7, the Vakalatnama from the side of accused was produced and further statement of the accused was recorded, and thereafter the matter came to be posted on 02.05.2022. The Rojnama of that day records that accused was present, while complainant and advocate were shown as absent and matter remained for recording of evidence of the complainant and the matter was adjourned to 09.05.2022. Mr. Patel referring to the Rojnama of that day submitted that, it shows that Exhibit-8 is the exemption application of the accused, the Rojnama further, reflects that the complainant and his advocate were absent, but the Court on that day dismissed the matter for default, in spite of the fact that accused was not present on that day and no permission was sought to cross-examine the complainant in accused’s absence.

3.2 Mr. Patel submitted that adhering to the principle of natural justice, the evidence from the side of prosecution should always be recorded in presence of the accused, unless from the side of the accused, an exemption note is with the permission of recording the evidence in his absence. Mr. Patel submits that the learned trial Court had no reason to dismiss the matter, and further stated that the provisions of section 256 of Cr.P.C. should be exercised pragmatically and not in a technical manner, and further stated that if at all the Advocate fails to pursue the matter or attend the Court, the ultimate litigant should not be punished for any default of the Advocate.

3.3 Mr. Patel further submitted that as per the provisions of section 138 of the Negotiable Instruments Act, the evidence of the complainant is generally produced by way of affidavit and the documents are referred in the affidavit to curtail the time consumed for the trial. Thus, Mr. Patel submitted that it was not a case of no evidence on record, while the accused had not even asked for cross-examination of the complainant, and without any opportunity to the complainant to explain about his absence, the learned trial Court Judge fell in error in dismissing the matter for default, rather should have placed the matter for hearing on the side of the complainant to grant one more opportunity; thus, perusing the Rojnama and the judgments cited, Mr. Patel urged the Court to quash and set aside the order dated 09.05.2022 and restore the Criminal Case in the file of the concerned trial Court Judge.

4. Speedy trial is a fundamental right of the accused; at the s