IMPORTANT POINT
The discretion under Section 256 of the Code of Criminal Procedure must be exercised judicially and fairly without impairing the cause of administration of criminal justice.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 28.03.2023 passed by the learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Palitana in Criminal Case No.3226 of 2021 by which, the criminal complaint came to be dismissed which was filed under Section 138 of the Negotiable Instruments Act.

2. The present appellant is the original complainant who has filed a private complaint before the learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Palitana alleging that the complainant is doing the business of selling the construction material and the accused is the contractor and doing the business in the name and style of ‘Vivek Construction’. For the goods, which were purchased by the respondent – accused from the complainant, the cheque bearing no.184502 of the Bank of India for the amount of Rs.50,000/- was issued in favour of the complainant and on depositing the same, the cheque was dishonoured with an endorsement ‘insufficient fund’. Therefore, after following the procedure prescribed under the Act, the private complaint came to be filed before the competent Court under Sections 138 and 142 of the Negotiable Instruments Act.

3. On recording the verification, the learned trial Court has issued summons under Section 204 of the Code of Criminal Procedure on 08.12.2021, making it returnable on 21.02.2022. The respondent – accused appeared before the learned trial Court and his plea came to be recorded below exh.9 on 25.05.2022. Thereafter, from time to time, the matter was adjourned. The learned advocate, who was appearing for the complainant has expired on 25.06.2022 and as the complainant did not procure the papers from the family members of the learned advocate, he could not remain present before the learned trial Court, therefore, the learned trial Court had issued notice on 01.10.2022 informing the complainant to remain present. On receiving the notice on 05.11.2022, the complainant remained present and filed an application seeking adjournment on the ground that the papers are not received from the family members of the learned advocate and he wants to engage the another advocate. Therefore, time was sought which was granted by the learned trial Court. Thereafter, again, the complainant and his advocate remained absent for 4 consecutive dates, therefore, application was filed by the respondent – accused below exh.12 praying to dismiss the complaint by exercising the powers under Section 256 of the Code of Criminal Procedure. The learned trial Court has dismissed the complaint for non-prosecution. Thereafter, on the same day i.e. on 28.03.2023, around 1:25 hrs., the complainant appeared and filed application below exh.13 requesting the Court that though the complainant was present on 30.01.2023, his presence was not recorded in the rojkam and on the day when the impugned order was passed at 1:25 hrs., the complainant came before the learned trial Court and he was informed that around 12:00 o’clock, the complaint came to be dismissed.

4. Thereafter, by filing an application below exh.13, the complainant requested the learned trial Court that the order of dismissal is not uploaded on the website and, therefore, his presence be considered and his cross-examination be concluded. The complainant has also requested that his advocate was present at 1:25 hrs. however, despite the same, order of dismissal was passed. The aforesaid application was also rejected on the same date i.e. on 28.03.2023 observing that though the summons was issued on 05.11.2022, neither the complainant nor his advocate remained present and the stage of trial was of cross-examination of the complainant, therefore, because of not remaining present, the proceedings were stuck.

5. Being aggrieved and dissatisfied with the aforesaid order of dismissal dated 28.03.2023, this appeal is filed by the complainant.

6. Heard learned advocate