IMPORTANT POINT
The discretion under Section 256 of the Code of Criminal Procedure should be exercised fairly and judicially, and the complainant should be given a fair opportunity to provide the fresh address of the accused before the dismissal of the complaint.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the judgment and order of the dismissal passed by the learned 4th Additional Judicial Magistrate First Class, Deesa in Criminal Case No.2404 of 2021 acquitting the respondent-accused from the charges under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ hereinafter).

2. It is the case of the complainant that the complainant is the finance company, who had given the finance on the vehicle to the respondent-accused and towards the payment of the amount, the cheque bearing No.586771 of Rs.1,50,000/and cheque No.586772 of Rs.2,19,000/was issued in favour of the complainant-company. On depositing both the cheques with the Bank, they were returned with an endorsement of ‘fund insufficient’. Therefore, after following the procedure prescribed under the Act, the private complaint came to be filed under Section 138 of the N.I.Act.

3. On recording the verification, learned trial Court has issued the summons, making it returnable on 23.07.2021 thereafter time to time, the matter was adjourned. On issuing the Bailable/Non-Bailable Warrants, the same remained unserved up to the date when the impugned order was passed. On 23.12.2022 the learned trial Court has observed that Exhibits 5 to 8 are remained unserved as the accused is staying at Mumbai and his new address was not provided by the complainant and therefore, by exercising the power under Section 256 of the Cr.P.C. the complaint came to be dismissed for non-prosecution, which is impugned before this Court.

4. Heard the learned advocate Mr.M.J.Patel for the complainant and though endorsement on the cause list shows that Rule is served in the application for seeking leave to prefer an appeal and as per the remarks notice is received by his brother, no one appears either inperson or through an advocate to oppose this appeal.

5. Learned advocate Mr.M.J.Patel submits that with regard to the service of summons, the statement of the brother was recorded which is part of the record and proceedings wherein the brother, namely, Kesarbhai Lilabhai Sobod has stated that his elder brother, namely Mukeshbhai Lilabhai Sobod is at present staying in Mumbai, Maharashra and his address is not in the knowledge, However, he stated in his statement dated 24.10.2022 that he would inform to the accused with regard to the proceedings and he would ask to remain present before the learned trial Court.

5.1. Learned advocate Mr.Patel submits that almost on all occasions, the learned advocate for the complainant as well as the complainant remained present, however, on the day when the impugned order is passed i.e. on 23.12.2022 due to miscommunication, he could not remain present and due to absence and non-furnishing the fresh address, the complaint came to be dismissed.

5.2. Learned advocate Mr.Patel submits that the respondent No.2 had availed the financial facility and after availing the facility, he did not repay the amount of loan therefore, disputed cheque which was given was sent for the encashment and the same was returned with the memo having the endorsement of ‘in sufficient fund’.

5.3. Learned advocate Mr.Patel submits that as the complainant-company was in process of getting the fresh address and therefore, the adjournment was sought on 23.11.2022 which was granted and the matter was adjourned on 23.12.2024. On that day, Non-Bailable warrant was issued against the respondent-accused, which was remained unserved with an endorsement that the respondent No.2 is at Mumbai and thereafter, the matter was adjourned on 23.12.2022 on the day when the impugned order was passed.

5.4. Learned advocate Mr.Patel submits that due opportunity was required to be given to the complainant to provide the fresh address as the complainant, who is finance company and money which is involved was of a public money therefore, on dismissing the complaint, the complainant would