IMPORTANT POINT
The court emphasized the need for the trial court to exercise discretion judiciously and fairly before dismissing a case on technical grounds and highlighted the importance of providing opportunities for parties to lead evidence.

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 of acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Anand in Criminal Case No.4893 of 2021, whereby the learned trial court has dismissed the complaint under section 256 of the Cr.P.C. for non prosecution and acquitted 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 is having a petrol pump and the respondent-accused is the transporter and used to come to the petrol pump of the complainant, this way they were having friendly relations with each other. Hence, when the respondent-accused asked the complainant to lend him Rs.15,00,000/-, complainant had lent it to him. In view of the aforesaid payment, a cheque of Rs.15,00,000/- dated 08-07-2021 was issued in favour of the complainant with an assurance that on depositing the same it would be honored and the amount would be credited in the account of the complainant. On depositing the same cheque, it was dishonored with an endorsement of “Funds Insufficient”.

2.1. On the day when the impugned judgment and order was passed, it was observed by the learned trial Court that though the matter was called out, no one has remained present on behalf of the complainant neither any report was submitted and due to absence of the complainant, trial could not be proceeded further, and therefore learned trial Court has passed impugned judgment and order of acquittal, which is subject matter of challenge before this Court.

3. Heard the learned advocate Ms.Renu Verma for the appellant-original complainant and though notice was issued, no one has appeared to oppose this appeal either in person or through an Advocate.

4. Learned advocate Ms.Verma submits that, as per the Rojkaam the complainant and his advocate remained absent on the day when the impugned judgment and order of acquittal was passed. Learned Advocate Ms.Verma submits that on perusing the Rojkaam, no absence or presence were recorded prior to the date of impugned judgment and order of acquittal. However, on single default the learned trial court has acquitted the respondent-accused by exercising the power under section 256 of the Cr.P.C.

4.1. Learned advocate Ms.Verma submits that for a single default in remaining present before the learned trial Court and that too also due to the miscommunication on the part of the complainant and his advocate, impugned judgment and order of acquittal was passed.

4.2. Learned advocate Ms.Verma submits that the cheque of Rs.15,00,000/- was dishonored for which the impugned complaint came to be filed and on dismissing the complaint the complainant was left remediless in view of the time barred litigation.

4.3. Learned advocate Ms.Verma submits that if this impugned judgment and order of acquittal is quashed and matter is remanded back to the learned trial Court for deciding it on merits, whatever the cost would be imposed by this Court would be deposited with the Registry of this Court. Learned advocate Ms.Verma by making this submissions prays to quash the impugned judgment and order of acquittal and order to restore the criminal case to its original file.

5. Considering the averment made in the application and the submissions advanced by the learned advocate for the appellant as well as after perusing the record and proceedings it transpired that, absence on the day when the judgment and order of acquittal was passed was recorded i.e. on 25-01-2023. Prior to that date no specific entry was posted in the Rojkaam recording the presence or absence of the complainant, therefore no specific finding can be made with regard to the absence of the respondent-accused prior to the date of impugned judgment and order of the acquittal.

6. Considering the submissions advanced