IMPORTANT POINT
The discretion to dismiss a complaint for non-appearance must be exercised judiciously and fairly, without impairing the cause of administration of criminal justice.

JUDGMENT :

1.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 of the acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Jamnagar in Criminal Case NO.4121 of 2018 dated 13.09.2023 whereby the learned trial Court has acquitted the respondent-accused from the charges punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the power under Section 256 of the Cr.P.C.

2. It is the case of the complainant that the complainant had lent the amount of Rs.35 Lakh to the respondent-accused to repay the said amount the cheque bearing No.741125 dated 04.04.2018 was issued in favour of the complainant for the amount of Rs.35 Lakh.

2.1. On depositing the said cheque, it was returned with an endorsement that ‘funds insufficient’ and therefore, after following the procedure prescribed under the N.I.Act, private complaint came to be filed before the learned Competent Court. On filing the complaint, the summons came to be issued on 06.06.2018 after recording the verification and thereafter plea came to be recorded of the accused on 29.11.2018. The accused pleaded not guilty and claimed to be tried therefore, the complainant was cross examined on 24.01.2020 and for production of certain documents the case came to be adjourned to 03.03.2020. Thereafter, the complainant, namely, Devkunwarben Nareshbhai Chavda expired on 02.05.2021 and the father of the complainant has filed an application below Exhibit 32 praying to implead him as a party in place of complainant in the complaint. The said application came to be rejected vide order dated 08.04.2022 on the ground that the said application is not supported by the affidavit.

2.2. Again, application below Exhibit 46 was preferred for substituting the complainant, which was allowed by the learned trial Court on 06.07.2022, however, thereafter the father of the complainant also passed away on 02.09.2022. Again, the appellant, who is the son of the complainant, namely, Devkunwarben Nareshbhai Chavda has filed an application below Exhibit 59 praying to implead as a complainant in place of Devkunwarben Nareshbhai Chavda, which was allowed by the learned trial Court on 28.07.2023 and thereafter the matter was kept on 13.09.2023. On 13.09.2023 neither the appellant nor his advocate remained present, therefore, learned trial Court has dismissed the complaint by exercising the power under Section 256 of the Cr.P.C., which is impugned before this Court.

3. Heard the learned advocate Mr.Jaivik Bhatt for the appellant and learned advocate Mr.Viral Dave for the respondent-accused and learned APP Ms.Vrunda Shah for respondent-State.

4. Learned advocate Jaivik Bhatt submits that unfortunately the mother who is the original complainant expired during the midst of the cross examination and thereafter the father namely Nareshbhai Chavda was joined in place of complainant by order dated 06.07.2022 who also passed away on 02.09.2022. Thereafter, the application below Exhibit 59 was preferred which was allowed vide order dated 28.07.2023 but the learned advocate has communicated that unless and until you will be joined in place of complainant, the presence would not be required.

4.1. Learned advocate Mr.Bhatt submits that due to miscommunication on the part of the appellant and his advocate, the appellant could not remain present and the judgment and order of the acquittal was passed by the learned trial Court. Learned advocate Mr.Bhatt submits that it is true that the application for impleadment of the party is allowed on 28.07.2023 but no amendment was carried out on the same day and the matter was adjourned to 13.09.2023 when the judgment and order of acquittal was passed.

4.2. Learned advocate Mr.Bhatt submits that instead of dismissing the complaint, learned trial Court could have adjourned the matter for once as after passing the order allowi