IMPORTANT POINT
The discretion under Section 256 of the Cr.P.C. must be exercised judicially and fairly, without impairing the cause of administration of criminal justice.

JUDGMENT

1. This appeal is filed challenging the judgment and order dated 25-05-2023 passed by learned Additional Judicial Magistrate First Class, Himmatnagar below Exh.1 in criminal case No.4218 of 2022 whereby power under section 256 of the Cr.P.C. was exercised and respondent- accused were acquitted from the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as the NI Act).

2. It is the case of the complainant that, complainant is running “Gaushala” and managing the Ashram by keeping cattle. The respondent-accused are doing labour work in the said “Gaushala”. As they were in need of financial assistance, an amount of Rs.2,00,000/- was demanded from the complainant which was lent and in lieu of the re-payment of the aforesaid amount, cheque bearing No.021973 dated 25-03-2022 was issued for the amount of Rs.2,00,000/-.

2.1. On depositing the same cheque it was returned with an endorsement of “Funds Insufficient”, therefore after following the due procedure under the NI Act a private complaint came to be filed before the learned competent Court.

2.2. Learned Trial Court has issued the summons to the respondent-accused vide order dated 11-05-2022 and the respondent-accused appeared and his plea came to be recorded below Exh.07 on 22-12-2022. Accused had pleaded not guilty and claimed to be tried, therefore chief examination of the complainant was recorded below Exh.10 and thereafter matter was posted for cross examination of the complainant. In the impugned order which was passed on 25-05-2023, the learned Trial Court has observed that accused appeared on 27-11-2022, however the case was adjourned for recording of plea on 22-12-2022, on that day the complainant and his Advocate were absent, but as the accused was present his plea came to be recorded.

2.3. Thereafter the case was posted for evidence of the complainant on 02-02-2023 and on that day neither the complainant nor his advocate remained present, therefore the case came to be adjourned on 16-02-2023. On 16-02-2023, the complainant and his advocate remained absent in the first round, therefore the date was posted in the “Rojkaam”. However thereafter the learned Advocate for the complainant remained present and he produced a list of documents.

2.4. Thereafter case was further posted on 10-03-2023. Again on 10-03-2023, learned Advocate for the complainant and the complainant remained absent, therefore the case was adjourned on 20-04-2023. On that day also the same situation occurred and therefore learned Trial Court has posted the case on 25-05-2023 and the impugned judgment and order came to be passed, dismissing the complaint for non- prosecution which is the subject matter of challenge before this Court.

2.5. Heard learned Advocate Mr.M.S.Patel for the appellant-original complainant and though rule is served in the application for seeking leave to prefer an appeal, respondent has chosen not to appear before this Court.

2.6. Learned Advocate Mr.M.S.Patel submits that, after the summons came to be issued it was informed by the learned Advocate for the complainant that as and when his presence would be required he would inform. However the learned Advocate did not remain present before the learned Trial Court and matter came to be dismissed for non prosecution.

2.7. Learned Advocate submits that due to absence of the learned Advocate for the complainant, the fair case of the complainant was suffered as this litigation under section 138 of the NI Act are time barred litigation and due to the impugned judgment and order of the acquittal on technical grounds, appellant was left remediless from recovering the amount of cheque from respondent-accused.

2.8. Learned Advocate submits that, as the case is pending since 2022 and if this Court would quash the impugned judgment and order and order to restore the criminal case to its original file, then no further adjournment would be sought and the trial would be concluded without further delay.

2.9.