IMPORTANT POINT
The court emphasized the need for fair opportunity and natural justice in dismissing complaints for non-prosecution, highlighting the importance of adjourning the case or issuing warrants before immediate dismissal.

JUDGMENT :

1.Since the issue raised in these appeals are similar, they are being decided by a common judgment. The facts of the criminal appeal No.665 of 2024 are taken for the purpose of adjudication.

2. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the judgment and order passed by the learned Chief Judicial Magistrate First Class, Galteshwar at Sevaliya dated 25.09.2023 dismissing the complaint filed under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the powers under Section 256 of the Cr.P.C.

3. It is the case of the complainant that the complainant and the accused are relatives and were having family relations with each other. On 16.01.2018 accused came to the house of the complainant and demanded the amount of Rs.4 Lakh as a hand loan and it was conveyed that as huge loss occurred in the transport business and therefore, he is in need of money. The complainant had lent the amount of Rs.4 Lakh with an assurance that the said amount would be returned within a period of six months from the date of lending the money.

3.1. To repay the amount after making various demands, the cheque bearing No.046217 of Rs.2,10,000 and cheque bearing No.046219 for the amount of Rs.1,90,000/- was issued in favour of the complainant. On depositing the cheque with the Bank, the same was returned with an endorsement of ‘account closed’. After following the procedure prescribed under the N.I.Act, the complainant has filed separate complaint for each cheque I.e Criminal Case No.258 of 2019 and Criminal Case No.259 of 2019.

3.2. On recording the verification in both the complaints, summons came to be issued under Section 204 of the Cr.P.C. on 18.03.2019, making it returnable on 15.04.2019. Though summons was served to the wife and father, but the respondent-accused did not appear before the learned trial Court and therefore by impugned judgment and order dated 25.09.2023 the trial Court had dismissed the complaint for non-prosecution on the ground that though summons were issued, but the complainant remained failed in service of the summons and there was no fresh address furnished by the complainant therefore, the powers under Section 256 of the Cr.P.C. were exercised, which is the subject matter of the challenge before this Court.

4.Heard learned advocate Mr.Keval Brahmbhatt for the appellant and learned advocate Mr.K.K.Maghnani for the respondent No.2.

5.Learned advocate Mr.Keval Brahmbhatt for the appellant submits that, address which is mentioned in the criminal complaint is the same address which is stated before this Court in the cause title of the criminal appeal and before the learned trial Court for four years the respondent-accused had managed the service of summons however, on the said address respondent No.2 was served and represented through his pleader. Learned advocate Mr.Brahmbhatt submits that, there was a statement recorded by the wife in Criminal Case No.258 of 2019 wherein the wife, namely, Jyotikaben had stated on 23.11.2022 before the Head Constable, Sathamba Police Station that the husband i.e. the respondent No.2accused is doing the work of driving and at present he is on his work and after he would reach home, she would ask the husband to remain present before the learned trial Court.

5.1. Learned advocate Mr.Brahmbhatt submits that, even the statement which was recorded prior to that date i.e. on 23.03.2021 of Jivabhai Parmar, who is the father of the respondent No.2 stating that he was informed about all the proceedings pending before the learned trial Court against his son, namely, Narendrabhai and on that day he was out of the house therefore, it was stated by the father that on returning he would inform his son with regard to the pendency of the proceedings.

5.2. Learned advocate Mr.Brahmbhatt submits that, though the respondent-accused was having the knowledge with regard to the pendency of