A complainant's consistent non-appearance may lead to dismissal of the case for non-prosecution under Section 256 of the Cr.P.C., and the High Court will not interfere unless clear illegality is shown.

ORDER :

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 23020 of 2023

1. This application is filed under Section 378(4) of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) seeking leave to prefer an appeal to challenge the judgment and order passed below Exhibit 1 in Criminal Case No.57933 of 2019 dated 11.02.2023 whereby the complaint came to be dismissed by exercising the power under Section 256 of the Cr.P.C. and the respondent-accused came to be acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter).

2. It is the case of the complainant that the complainant is a milk vendor and as the complainant wants to sell the stable, the respondent-accused had shown willingness to purchase the same and therefore, the sale deed with the possession was executed between the parties on 30.08.2019. To make the payment of the sale consideration, the cheque dated 09.10.2019 for the amount of Rs.8 Lakh bearing No.048671 was issued in favour of the complainant. On depositing the same, it was dishonored with an endorsement of ‘funds insufficient’ and therefore, on following the due procedure under the N.I.Act, a complaint came to be filed.

2.1. On recording the verification, the summons came to be issued by the learned trial Court, making it returnable on 13.01.2020 thereafter, the complainant did not remain present on any occasions and therefore, the learned trial Court has dismissed the complaint for non- prosecution, which is the subject matter before this Court.

3. Heard the learned advocate Mr.Pathiv Bhatt for the applicant.

4. Learned advocate Mr.Parthiv Bhatt submits that there was no any reasons stated in the memo of appeal for not remaining present for these many occasions, however, at the same time, the notice is required to be issued to the complainant before dismissing the complaint and before exercising the power under Section 256 of the Cr.P.C. Learned advocate Mr.Bhatt submits that the learned trial Court by not issuing the notice before dismissing the complaint has committed an error and therefore, the application for seeking leave to prefer an appeal is required to be granted and appeal is required to be admitted.

5. Considering the submissions made by the learned advocate Mr.Bhatt for the applicant and on examining the record and proceedings it transpires that, after verification was recorded on 02.01.2020 and the summons came to be issued on 13.01.2020 thereafter, the case was posted on 09.03.2020, 13.05.2020, 16.09.2020, 04.12.2020, 19.12.2020, 06.05.2020, 29.07.2020, 21.10.2020 and thereafter the case came to be transferred to the court of learned 23rd Additional Senior Civil Judge and Judicial Magistrate First Class, Surat vide order dated 05.01.2022. Thereafter, again the case came to be posted on 31.05.2022, 30.06.2022, 30.08.2022, 30.09.2022, 11.10.2022, 18.10.2022, 07.11.2022, 30.11.2022, 13.12.2022, 20.12.2022, 10.01.2023, 17.01.2023, 25.01.20203, 31.01.2023, 09.02.2023, 10.02.2023 and 11.02.2023.It transpires from the record that on none of the occasions the complainant or his advocate remained present to conduct the case before the learned trial Court.

6. So far as the submissions with regard to the issuance of the notice before exercising the power under Section 256 of the Cr.P.C. is concerned, before discussing further provision under Section 256 is required to be relooked. Section 256 of the Code of Criminal Procedure is reproduced herein below:-

“256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of th