IMPORTANT POINT
The main legal point established is the need for judicial and fair exercise of discretion by the Magistrate under Section 256 of the Cr.P.C., and the importance of giving parties the opportunity to adduce evidence.

JUDGMENT :

1. Since the issue raised in the these appeals are similar, they are being decided by a common judgment. The facts of Criminal Appeal No.352 of 2024 are taken for the purpose of adjudication.

2. Endorsement on the cause list shows that Rule which was issued in the application for seeking leave to prefer an appeal was served on 19.01.2024, however, the respondent has chosen not to appear before the Court.

3. These appeals are filed challenging the impugned judgment and order of the acquittal dated 09.12.2023 passed by the learned trial Court in Criminal Case No.3716 of 2022 acquitting the respondent-accused under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the powers under Section 256 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter).

4. It is the case of the complainant that the complainant is doing the business of Control Penal and the respondent-accused is doing the business of selling milk and paneer. The respondent-accused had purchased the electric equipment from the complainant and for the payment of the same, 11 cheques for the amount of Rs.15,000/was issued in favour of the complainant. On depositing the same, the cheques were returned with an endorsement of ‘insufficient fund’ therefore, after following the procedure prescribed under the Act, complaint for the offence punishable under Section 138 of the N.I.Act was filed before the Competent Court. Four complaints were filed by the complainant before the competent Court. Details of complaints are reproduced hereinbelow:

4.1. Thereafter, from the rojkaam it transpires that on 20.07.2022 verification was recorded and summons came to be issued, making it returnable on 07.10.2022. Thereafter, from the rojkaam, it further transpires that plea of the accused was recorded on 10.05.2023 and case was kept for the cross examination of the complainant. Rojkaam does not reflect the absence or present of the complainant’s advocate or the complainant neither any reasons for adjournments are stated, however, on 09.12.2023 complaint came to be dismissed in the absence of the advocate of the complainant by exercising the power under Section 256 of the Cr.P.C., which is impugned before this Court.

5. Heard the learned advocate Mr.Paresh Darji for the appellant and though the Rule was issued in the application for seeking leave to prefer an appeal, the respondent-accused did not appear either through an advocate or inperson.

6. Learned advocate Mr.Paresh Darji for the appellant submits that almost on all occasions learned advocate for the complainant remained present and on some of the occasions complainant did not remain present, however, the case was adjourned not only because his absence, but because of the absence of the advocate of the accused as well as the accused. Learned advocate Mr.Darji submits that from 02.12.2023 to 10.12.2023 as he was out of India and therefore, he could not remain present before the learned trial Court.

6.1. Learned advocate Mr.Darji submits that though he instructed the learned advocate, however, due to some miscommunication, the learned advocate for the complainant also not remained present on the day when the impugned judgment passed and complaint came to be dismissed. Learned advocate Mr.Darji submits that it is true that the case is pending since 2022, but on perusing the rojkaam, it does not transpire that the same was remain pending due to the absence of the complainant only. Learned advocate Mr.Desai submits that there was no any settlement arrived between the party, learned trial Court under the misconception of the fact recorded that though settlement is arrived, the complainant did not remain present and therefore, the complaint