ORDER :

1. This Court upon hearing the learned advocate on record for the applicant- original complainant, had granted leave to appeal vide order dated 28.03.2023 and notice for final disposal was issued in the appeal, which was made returnable on 13.04.2023 and the respondent-original accused was permitted to be served through the concerned police station.

2. The notice has been duly served upon respondent No.2-original accused, however, respondent No.2 has chosen not to appear before this Court or to contest the present appeal by filing his appearance.

3. This appeal arises out of the judgment and order dated 11.02.2023 passed by learned Chief Judicial Magistrate, Nadiad below Exh.1 Criminal Case No.775 of 2019. By the said judgment and order, the learned Magistrate has proceeded to dismiss the complaint for non-prosecution by exercising the powers conferred under Section 256 of Cr.P.C.

4. Heard Mr. Krunal Pandya, learned advocate on record for the appellant and Mr. Bhargav Pandya, learned APP appearing for the respondent-State.

5. The short question which falls for my consideration in this appeal, is whether in the facts of the present case, the learned Magistrate was justified in dismissing the criminal complaint for nonappearance of the complainant, resulting into acquittal of respondent No.2-accused for the offence punishable under Section 138 of the N.I. Act.

6. Before proceeding with the aforesaid issue, it would be appropriate to refer to the certain dates, which has emerged on record, more particularly, from the rojkam of the criminal case.

6.1. On 08.02.2019, the present applicant-original complainant has approached the court of learned Chief Judicial Magistrate, Nadiad by filing complaint under Section 138 of the N.I. Act against respondent No.2-original accused. The said complaint was registered as Criminal Case No.775 of 2019. In the complaint, it was alleged that the complainant and the accused had known each other as they were in the same business. Because of friendly terms, the accused had approached the complainant seeking financial help of an amount of Rs.40,000/-. The complainant had given hand loan of an amount of Rs.40,000/- in cash to the accused. It is further contended that when the complainant had approached the accused for repayment of such amount, the accused had handed over him cheque bearing No.843457 dated 06.09.2018, which was signed by him with an assurance that on presentation of said cheque, the amount would be realized. The complainant had presented the aforesaid cheque for realization of the amount on 27.11.2018, which got dishonoured with endorsement of “insufficient funds” and was returned back on 28.11.2018.

6.2 The complainant was constrained to give legal notice dated 24.12.2018, which was sent by R.P.A.D. on the known address of the accused. Such notice was duly served upon the accused on 28.12.2018. However, the accused had failed to repay the amount within the prescribed period of 15 days. In such circumstances, cause of action had arisen for the complainant to initiate the appropriate proceedings and the present complaint was filed against the accused.

6.3 Upon verification of the complainant, the summons came to be issued upon the respondent-accused. During the period of March-2020 to December-2020, because of Covid-19 pandemic followed by lock down, the physical hearing of the case was restricted. In such circumstances, the complainant was unable to attend the court proceedings. The Court had again started with physical hearing in the month of March-2021. The matter was adjourned in absence of learned advocate on record for the original complainant. The rojkam reflects that no report was received from the complainant seeking adjournment. Rojkam further indicates that the service of summons upon accused was awaited from 04.04.2019.

6.4 The complainant had moved application Exh.6 seeking issuance of summons upon the accused, to be served through Office of District Superintendent of Police, R