JUDGMENT :

1. Mr. Amit R.Joshi, learned advocate for the appellant submits that the challenge is given to the order dated 21.01.2021 passed by 4th Additional Judicial Magistrate, First Class, Himatnagar, dismissing the Criminal Case No.5855 of 2015 for default under section 256 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’).

2. Mr. Joshi submits that the learned trial Court Judge has seriously erred in not considering the pandemic situation, which was beyond the control of the appellant, and further the office of the appellant as Gujarat State Cooperative Agriculture and Rural Development Bank Ltd. has remained closed because of prevailing circular at the relevant time issued by the Government; the dismissal on the face of it, is bad in law.

2.1 Mr. Joshi further submits that the Hon’ble Apex Court also while considering the pandemic situation had extended the limitation period for filing the complaints and the learned trial Court Judge oblivious of this concession, granted to the litigants, has observed that complainant had remained absent in spite of several opportunities granted and under one or the other reasons, the proceedings have been prolonged.

2.2 Mr. Joshi relying on the judgment of Meters And Instruments Private Limited & Anr. Vs. Kanchan Mehta, reported in 2018 (1) SCC 560, submitted that the procedure for trial of the case has normally to be a summary and evidence in case under section 138 are to be given on affidavit, and in this case the affidavit-in-chief has been produced on record vide Exhibit-4.; the list of documents was at Exhibit-3, and Exhibit-5 is an application for a prayer to exhibit the documents. Mr. Joshi submitted that the learned trial Court Judge could have closed the stage of cross-examination rather than dismissing the matter outright, which could have provided an opportunity to the complainant to make a prayer for setting aside the order of closure of evidence and getting it restored again at a stage of cross-examination.

2.3 Mr. Joshi submitted that the complaint was filed on 02.12.2015 and on 06.08.2018, the accused appeared through a lawyer and has moved an application for bail at Exhibit-15, and the plea was recorded on 28.11.2018. He states that an application for quashing of the complaint being Criminal Misc. Application No.24222 of 2018 was preferred by the accused, and the writ of the same is on record of the trial Court at Exhibit-19, the matter is still pending hearing before this Court, and thereafter from both side the adjournment was sought and after an adjournment application at Exhibit-20 by the complainant on 30.05.2019, subsequently all the applications for adjourning the matter were moved by the accused. Mr. Joshi states that from 30.04.2020 to 11.12.2020, the matter was not listed on board, since no rojnama was prepared, and on 11.12.2020 the matter again came for recording of evidence of the complainant and after adjournment on 05.01.2021, the matter was listed for hearing on 21.01.2021.

2.4 Mr. Joshi submitted that though the accused and his advocate was present before the Court, they had not apprised the learned trial Court about the pendency of the Criminal Case before this Court, which is for quashing of the complaint and the learned Judge, thus, passed the impugned order of dismissing the complaint observing as a default from the side of the complainant. Mr. Joshi submitted that there was no negligence or any carelessness from the side of the complainant. The accused has challenged the complaint before this Court and even keeping that fact into consideration, the learned trial Court Judge ought not to have dismissed the matter and acquitted the accused. Mr. Joshi further stated that the learned trial Court Judge ought to have observed its own proceedings before dismissing the matter.

3. Speedy trial is a fundamental right of the accused; at the same time, every person has right to be heard on merits, is a principle to be adopted by way of principle of natural