IMPORTANT POINT
The main legal point established in the judgment is the significance of complainant's cooperation in trial proceedings and the need to discourage dilatory tactics to ensure timely justice delivery.

JUDGMENT :

1. This appeal is filed by the appellant-original complainant challenging the judgment and order of acquittal dated 13th December, 2017 passed in Criminal Case No.3200055 of 2016 below Exh. 1 by the learned Additional Chief Metropolitan Magistrate, N.I.Act Court No. 32, Ahmedabad dismissing the complaint for default which was filed under Section 138 of the Negotiable Instrument Act.

2. It is case of the complainant that the complainant filed the private complaint who is the Goldsmith against the respondent-accused who is LIC agent. The money was lended by the complainant in part for the purpose of purchasing the house during April, 2015. When the amount was demanded back, the cheque bearing No. 555650 dated 28th October, 2015 for the amount of Rs.32,80,000/- was issued in favour of the complainant. On depositing the cheque, it was dishonored with an endorsement of “Fund insufficient” on 29th October, 2015. After following due procedure prescribed under the Act, a private complaint came to be filed before the competent Court. Learned Court has issued the summons after recording the verification vide order dated 13th January, 2016. Thereafter, the matter was kept on 23rd February, 2016 and 6th May, 2016. On 6th May, 2016, the respondent-accused appeared and plea was recorded below Exh. 7. Thereafter, time to time, the criminal case was being adjourned. On 16.9.2017, again the case was adjourned after keeping the notice on the outside of the Court that if on the next date of hearing, the complainant or his advocate fail to appear than the order would be passed under Section 256 of Criminal Procedure Code. On 1st November, 2017, though the notice board reflects the case number of the present case as well as the notice was issued to the learned advocate for the complainant, neither the advocate nor the complainant remained present. Again for giving one more chance, the case was adjourned on 13th December, 2017. On 13th December, 2017, the same situation arisen and no-one was present therefore, learned trial Court has passed the order dismissing the complaint by exercising the power under Section 256 of the Criminal Procedure Code which is impugned before this Court.

3. Heard Ms. Meena Vyas, learned advocate for the appellant-original complainant and Mr. S.M.Sojatwala, learned advocate for the respondent No. 1.

4. Ms. Meena Vyas, learned advocate for the appellant submits that the complaint was filed on 3rd January, 2016 and the process came to be issued under Section 204 of the Criminal Procedure Code Learned advocate for the complainant has been instructed to appear on behalf of the complainant and he did not remain present, therefore, the complaint came to be dismissed. Learned advocate submits that though under Section 256 of the Criminal Procedure Code the notice is required to be issued. However, doing the same the power was exercised by dismissing the matter for non-prosecution. Learned advocate submits that because of the nonappearance of the advocate of the complainant, the complainant caused huge loss as the case pertaining to the Negotiable Instrument Act is a time barred litigation and dismissing the complaint for default, would bar the fresh complaint therefore, if this complaint would not be restore to its original file than, the genuine case of the complainant would suffer. By submitting the same, learned advocate prays to order to restore the original complaint to its file and direct the learned trial Court to decide the case on its merits.

5. As against the aforesaid arguments, the submission made by learned advocate for the respondent is that after filing the complaint, the complainant did not turn up for further proceedings, and though the respondent-accused appear and his plea was recorded on 6.5.2016, the complainant did not remain present for the crossexamination and therefore, the learned trial Court has rightly passed the judgment and order of the acquittal.

5.1. Learned advocate further submits that in