IMPORTANT POINT
The central legal point established in the judgment is the importance of judicial and fair exercise of discretion under Section 256 of the Code of Criminal Procedure, ensuring that the cause of administration of criminal justice is not impaired.

JUDGMENT :

1.This appeal is filed under Section 378 of the Code of Criminal procedure, 1973 ('the Cr.P.C.' hereinafter) challenging the judgment and order dated 20.12.2023 passed by the learned Chief Judicial Magistrate, Sabarkantha, Himmatnagar below Exhibit 1 in Criminal Case No.7692 of 2021 filed under Section 138 of the Negotiable Instruments Act, 1886 ('the N.I.Act' hereinafter).

2. It is the case of the complainant that complainant is running the firm in the name and style of Gurukrupa Steal Trading Corporation and the accused is doing the business in the name and style of Akshar Construction. The accused had purchased the goods, namely, Brass and Iron from the firm of the complainant and to pay the aforesaid bill amount, the cheque bearing No.030164 for the amount of Rs.1,80,361/- in favour of the complainant was issued.

2.1. On depositing the cheque before the Bank, it was dishonored with an endorsement of 'funds insufficient' and therefore, after following the due procedure prescribed under the N.I.Act the complaint came to be filed. Learned trial Court after recording the verification has issued the summons on 11.05.2021, however, the summons could not be served upon the respondent-accused and the criminal case came to be adjourned from time to time at the stage of providing the fresh address of the respondent-accused.

2.2. On 20.12.2023 learned trial Court after recording the absence of the complainant and his advocate has observed that after 06.10.2022 as per the record, complainant and his advocate did not remain present and therefore, complaint came to be dismissed by exercising the power under Section 256 of the Cr.P.C., which is subject matter of the challenge.

3. Heard the learned advocate Mr.Vaibhav Sheth for the appellant and though Rule is served in the application for seeking leave to prefer an appeal to the respondent-accused and the statement was recorded by the ASI 'A' Division Police Station, Himmatnagar stating that he would remain present before the Court on the date of hearing i.e. on 29.02.2024, however, thereafter though the matter was adjourned, no one has appeared either in-person or through an advocate.

4.Learned advocate Mr.Sheth submits that it is true that on some occasions the complainant and his advocate remained absent, but as fresh address was not available with the learned advocate for the complainant, the same could not be provided and the presence could not be secured before the learned trial Court. Learned advocate Mr.Sheth submits that now the fresh address has already been provided by the complainant and on the said address Rule which was issued by this Court has been served, therefore same would be provided with the learned trial Court if this matter would be restored to its original file.

4.1. Learned advocate Mr.Sheth submits that due to non-remaining present of the learned advocate for the complainant, fair case of the complainant is suffered because of the dismissal of the complaint and as these proceedings under Section 138 of the N.I.Act are time barred litigation, the complainant would be left remediless in event, this impugned judgment and order is quashed.

4.2. Learned advocate Mr.Sheth submits that as this case is pending since 2021 and due to non-furnishing the address, the presence could not be secured of the respondent-accused, the complainant would pay the amount of cost whatever is decided by this Court. Learned advocate Mr.Sheth submits that he would undertake that no further adjournment would be sought unnecessary and the criminal case is concluded without any further delay. On making these submissions, learned advocate Mr.Sheth prays to quash the impugned judgment and order of the acquittal and also prays the order to restore the criminal case to its original file.

5.Considering the submissions advanced by the learned advocates for the respective parties and before going into the merits, the provisions under which, the impugned order is passed, is required to be relooke