The court emphasized the importance of fair trial procedures and the administration of justice, and held that the dismissal of the complaint for non-appearance of the complainant was unjustified.

JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973, challenging the impugned judgment and order passed by learned 14th Addl. Chief Judicial Magistrate, Vadodara dated 3.4.2023 in Criminal Case No. 44159 of 2009 dismissing the complaint for non prosecution under Section 256 of the Code of Criminal Procedure, 1973.

2. It is the case of the complainant that complainant is the Co.Op. Society registered under the Gujarat Co.Op. Societies Act, 1961 and given the vehicle finance to the Respondent- accused of Rs. 32 Lacs on 10.7.1996. Due to non payment the loan amount, the Lavad Case was filed before the learned Board of Nominees being Lavad Case No. 268 of 2002, which was allowed in favour of the Bank vide an order dated 30th November, 2002. Towards the part payment of decreetal amount, cheque of Rs. 3 Lacs was issued in favour of the complainant on 23rd December, 2008 and on depositing the same, it was dishonored with an endorsement “insufficient fund.” After following the due procedure under the Negotiable Instruments Act, a private complaint came to be filed before learned Judicial Magistrate First Class, Vadodara being a Criminal Case No. 736 of 2009. After recording the verification, learned trial Court had issued the summons vide an order dated 10.2.2009. As accused did not appear before the learned trial Court, therefore, bailable warrant came to be issued vide an order dated 23rd August, 2011. Thereafter, case was transferred to the learned 12th Addl. Senior Civil Judge, Vadodara vide an order dated 17.2.2015 and again, summons came to be issued, which was not complied with and therefore, bailable warrant was issued, however, respondent-accused did not appear. The case was transferred again to the learned 15th Addl. Senior Civil Judge, Vadodara vide an order dated 19.9.2022 and again the same procedure followed and ultimately, Non Bailable Warrant was issued, and vide an order dated 9.1.2023, the proclamation was ordered to be issued and matter was kept on 10th February, 2023. On 6th March, 2023, despite the proclamation that has been issued, respondent-accused did not appear, an application was given for attachment of the property under Section 83 of the Code of Criminal Procedure by the learned advocate for the complainant. Thereafter, case was kept on 3rd April, 2023 and due to absence of complainant the impugned order was passed. It is observed by the learned trial Court that though the case was called out repeatedly, neither the learned advocate for the complainant nor the complainant remain present and therefore, complaint was dismissed for default by exercising the power under Section 256 of the Code of Criminal Procedure, which is impugned before this Court.

3. Heard Mr. M.M. Kharadi, learned advocate for the applicant-Bank, learned APP, Ms. Monali Bhatt, for Respondent-State and Mr. P.P. Majmudar, learned advocate for Respondent-accused.

4. Learned advocate for the complainant states that on several dates, the complainant-Bank made an application before the learned Magistrate for issuance of the summons for execution of the bailable warrant and non bailable warrant, proclamation under Section 82 of the Code of Criminal Procedure and to initiate the proceedings under Section 83 of the Code of Criminal Procedure. Only on the day when the impugned order was passed, neither the complainant nor his advocate was remained present but considering the applications, which are preferred to suggest that the complainant though given an applications from the year 2009 onwards, to secure the presence of the accused and for single default, the impugned order was passed by the learned trial Court. Learned advocate submits that even before this Court also, respondent-accused appeared through an advocate, after issuance of Non-Bailable Warrant.

5. Learned advocate submits that in the application filed for the cancellation of warrant, the same address is mentioned, which is in the c