IMPORTANT POINT
The principle of natural justice requires giving parties the opportunity to adduce evidence and deciding matters on their own merits.

JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed by the appellant, who is the original complainant, under Section 378 of the Code of Criminal Procedure, challenging the judgment and order dated 25.04.2019 passed by the learned Additional Chief Metropolitan Magistrate, Court No. 28, Ahmedabad in Criminal Case No. 1140 of 2016 below Exh.1 by which, the private complaint filed under Section 138 of the Negotiable Instruments Act has been dismissed for default by exercising the powers under Section 256 of the Code of Criminal Procedure.

2. It is the case of the complainant that the complainant is the Corporation owned by the Gujarat Government and is engaged in development of the industry by providing industrial sheds and plots in various plots of Gujarat. The accused is the proprietor of the firm and carrying out the business in the name and style mentioned in the cause-title.

3. It is the case of the complainant that the accused had issued cheque in favour of the complainant to discharge the debt, which was owned by the complainant-Corporation. On presenting the cheque with the bank authority, the same was returned with an endorsement of “account closed” or “exceeds arrangement” and after issuing the statutory demand notice and following the procedure prescribed under the Negotiable Instruments Act, the private complaint came to be filed by the complainant against the accused persons. After recording the verification, the learned trial Court has issued process to the accused persons and on being appeared, the plea came to be recorded and thereafter, the case was adjourned from time to time for one or another reason.

4. It is the case of the complainant that the application was filed by the respondent-accused to recall the witness in which, the learned trial Court has passed the order dated 20.10.2018 wherein, it is observed that after disclosing the defense, the witness be recalled. It is the further case of the complainant that application Exh.7 was filed by the accused on 16.05.2019 for direction and to recall the witness, namely, the complainant for cross-examination. The aforesaid application came to be allowed on 30.05.2019 and the complainant was directed to remain present on the next date of hearing i.e. on 25.04.2019.

5. On 25.04.2019, the complainant has moved an application below Exh.8, seeking adjournment on the ground that against the order passed by the learned trial Court dated 30.05.2019, the complainant wants to file the revision application before the higher forum. The said application came to be rejected by detailed order on 25.04.2019 and the matter was kept in second session directing the complainant to remain present. In the second session again, the application was filed below Exh.9, requesting to grant an adjournment to file the revision application against the order passed below exhs.7 and 8. The learned trial Court has passed the detailed order on the same day i.e. on 25.04.2019, dismissing the complaint by exercising powers under Section 256 of the Code of Criminal Procedure on the ground of absence of the complainant which is under challenge before this Court in the present proceedings.

6. Heard learned advocate Mr. R.D. Dave for the appellant and learned advocate Mr. Y.J. Patel for the respondents.

7. Learned advocate Mr. Dave submits that after the plea was recorded, the application was filed by the accused below Exh.1 requesting the Court to recall the witness of the complainant for cross-examination. The learned advocate submits that the learned trial Court has passed an order allowing the application on 20.10.2018 whereby, the direction was issued that after disclosing the defense, the recall of witness was permitted to be allowed. The learned advocate submits that though the specific order was passed by the learned trial Court to disclose the defense, after considering the various judgments of the Hon’ble Apex Court as well as the High Courts, no defense was disclosed and again, the application was mov