IMPORTANT POINT
The discretion under Section 256 of Cr.P.C should be exercised judiciously and fairly, considering the necessity of the complainant's presence and the principles of natural justice.

JUDGMENT :

1. This appeal is filed by the appellant-original complainant under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the impugned judgment and order of acquittal dated 07.10.2023 passed in Criminal Case No.588 of 2013 by the learned 2nd Additional Chief Judicial Magistrate, Anand.

2. It is the case of the complainant that the complainant was doing business of transportation and the accused had conveyed that he is the owner of the vehicles which were hired for transportation of cotton bundle from P.B.M Polytex Ltd, Cochin, Kerala. An advance amount was paid to the accused of Rs.1,26,000/- towards the rent which was misused by the respondent-accused. On demanding the cheque amount as instead of depositing with the vehicle owner, he had utilized it for his personal expenses. The cheque bearing no. 023325 for an amount of Rs.80,000/- was issued in favour of the complainant being namely South India Roadlines and on discerning the same, after following the due procedure under the Negotiable Instruments Act, 1881 (‘the N.I. Act’ referred hereinafter), a private complaint came to be filed being Criminal Case No.588 of 2013.

3. The learned trial court has issued summons after recording verification. However, as observed in the impugned judgement and order of acquittal, summons and warrants were not served to the respondent-accused. Therefore, complaint came to be dismissed by exercising the powers under section 256 of Cr.P.C. which is the subject matter of challenge.

4. Heard learned advocate Mr.Ankit Bachani for the appellant-original complainant and though endorsement on the Cause List shows that Rule duly served in the application for seeking leave to prefer an appeal but respondent has chosen not to appear either in person or through an advocate.

5. Learned advocate Mr.Bachani has drawn the attention of this Court with regard to the entries in the rojkam and submitted that learned advocate for the complainant had remained present on almost all dates and on the day when the impugned judgment and order was passed, the learned advocate did remain present. The learned trial Court dismissed the complaint by observing that complainant is remaining absent. Leaned advocate Mr. Bachani submits that stage of the complaint is to secure the presence of the respondent-accused and therefore, even if the complainant remains absent, proceedings cannot be said to have been struck because of the non remaining present of the complainant.

5.1 Learned Advocate Mr Ankit Bachani submits that when the personal attendance of the complainant is not necessary then learned trial Court instead of dismissing the complaint for non prosecution could have adjourned the matter or could have proceeded further. Without doing so, the learned trial Court has dismissed the complaint for non prosecution. Learned advocate Mr Ankit Bachani submits that the address which is mentioned in the complaint is the very address which is stated in the appeal memo and the proceeding which is pending before this Court showing that Rule duly served on the same matter. However, despite various summons and warrants the service could not be completed on the address which is mentioned in the complaint. Learned advocate Mr. Ankit Bachani submits that this conduct of the respondent- accused shows that though he is having the knowledge of the proceedings somehow he managed the service of the summons and he did not appear before the learned trial Court.

5.2 Learned advocate Mr Ankit Bachani submits that the proceedings arising from section 138 of the N.I. Act is time barred litigation and on dismissing the complaint, the complainant has been left remediless. Therefore, learned advocate Mr Bachani prays to quash the impugned judgment and order of the acquittal and prays to restore the criminal case in its original file.

6. Considering the submissions advanced by the learned advocates for the respective parties and before going into the mer