IMPORTANT POINT
The court emphasized the need for a judicial and fair exercise of discretion in dismissing a complaint for non-appearance of the complainant, stating that the complaint should not be dismissed on a single default and that the trial court could have adjourned the case or granted exemption to the complainant for non-appearance.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the impugned judgment and order dated 03.01.2023 passed in Criminal Case no.1486 of 2021 by the learned Judicial Magistratre First Class, Harij, District Patan under Section 256 of the Cr.P.C. dismissing the complaint on the ground of non-prosecution and acquitting the respondent-accused 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 and the accused is having the business relations and the respondent-accused had purchased the cumin seeds of Rs.33,73,180/-. Out of the aforesaid amount, some amount has been paid by the respondent- accused and for the amount of Rs.28,89,182/- the cheque bearing No.273575 of the Axis Bank dated 06.10.2021 was issued in favour of the complainant. On depositing the said cheque, it was dishonored with an endorsement of ‘funds insufficient’ and therefore, after following the due procedure prescribed under the N.I. Act, a private complaint came to be filed.

2.1. The learned trial Court after recording the verification has issued the summons vide order dated 24.01.2022. Thereafter, the summons remained unserved as well as due to the absence of the complainant, private complaint came to be dismissed, which is the subject matter before this Court.

3. Heard the learned advocate Mr.P.T.Jasani for the appellant-original complainant and though the notice was served by way of substitution of service, the respondent-accused did not appear to oppose this appeal.

4. Learned advocate Mr.P.T.Jasani submits that this complaint was filed during the COVID-19 pandemic and after filing the complaint, the learned advocate for the appellant has informed that on appearance of the respondent-accused, the presence of the complainant would require and the progress of trial would be informed time to time.

4.1. Learned advocate Mr.Jasani submits that though in the rojkaam, it is stated by the learned trial Court that the notice be issued to the complainant, however in the impugned judgment and order, the learned trial Court has observed that notice was not returned after service to the complainant. Learned advocate Mr.Jasani submits that instead of waiting for the service of notice, learned trial Court has dismissed the complaint for non- prosecution and thereby the complainant left remediless in view of time barred litigation.

4.2. Learned advocate Mr.P.T.Jasani submits that as the stage of the trial was for securing the presence of the respondent- accused, due to non-presence of the complainant, it cannot be said that proceedings could not be concluded. Learned advocate Mr.P.T.Jasani submits that instead of dismissing the complaint, learned trial Court could have issued the summons or warrant to the respondent- accused to see that the respondent-accused is remained present before the learned trial Court, however, instead of doing so, the learned trial Court exercised the power under Section 256 of the Cr.P.C and therefore, learned advocate Mr.P.T.Jasani prays to interfere with the impugned judgment and order of the acquittal and to remand the criminal case for fresh trial.

5. Considering the submissions advanced by the learned advocate Mr.P.T.Jasani for the appellant and before going into the merits, the provisions under which, the impugned order is passed, is required to be re-looked. 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 the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearin