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 dated 15.07.2023 passed by the learned 6th Additional Chief Judicial Magistrate, Anand in Criminal Case No.4493 of 2021 under Section 256 of the Cr.P.C. whereby the respondent-accused came to be acquitted from 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 had come to fill up the diesel/petrol in the vehicle at the petrol pump of the complainant and in view of the payment of the aforesaid petrol/diesel, the cheque of Rs.9,01,915/- 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.

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 the plea as well as further statement of the accused was recorded and the trial was kept for the purpose of cross examination of the complainant and due to absent 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 served to the respondent-accused in application for seeking leave to prefer an appeal, no one has appeared to oppose this appeal.

4. Learned advocate Ms.Renue Verma submits that on the day when the impugned judgment and order was passed, the complainant could not remain present and prior to that on 01.07.2023 the absence of the complainant was recorded in the rojkaam. Learned advocate Ms.Verma submits that before 02.06.2023 there were no absence or presence recorded and prior to that the learned Court was on leave therefore, the case came to be adjourned.

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.9 Lakh 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 submissions advanced by the learned advocate for the appellant and before going into the merits, the provisions under which, the impugned order is passed, 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 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 hearing of the case to some other day: Provided that where the complainant is represen