IMPORTANT POINT
The main legal point established in the judgment is the importance of judicial and fair exercise of discretion under Section 256 of the Code of Criminal Procedure, emphasizing the necessity of the complainant's presence and the need to consider the merits of the case before dismissing a complaint for non-prosecution.

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 acquittal passed by the learned 10th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No.8342 of 2009 dated 20.12.2023 acquitting the respondent for the charges punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the power under Section 256 of the Cr.P.C.

2. It is the case of the complainant that the complainant is doing the business of Amul, BSNL and Sky advertisement and the accused was serving as a stenographer at CBI Court, Ahmedabad, however, he was suspended from the Court and therefore, he was staying with the father at Mahesana. When the accused was serving at Gandhinagar, at that point of time with regard to the purchasing of the plot at Gandhinagar, Rs.10 Lakh was paid to the respondent-accused under the assurance that the sale deed would be executed in favour of the complainant, however, subsequent to the said transaction, the accused had shown unwillingness to execute the sale deed. Therefore, the amount which was paid towards the sale consideration was demanded back. On repetition of demand, cheque came to be issued in favour of the complainant by the accused on 01.05.2009 of Rs.10 Lakh with an assurance that on depositing the same, amount would be credited in the account of the complainant. On depositing the cheque with the Bank, it was returned with an endorsement of ‘fund insufficient’. After following the due procedure prescribed under the Act, private complaint came to be filed before the competent court at Mahesana.

3. Learned trial Court after recording the verification, issued the summons on 06.08.2009 thereafter the accused came to be appeared before the learned trial Court on 04.01.2010 and his plea came to be recorded below Exhibit 7 wherein he pleaded not guilty and claimed to be tried. Thereafter, the matter came to be adjourned on 11.02.2010, on that day the application was given by the accused seeking exemption which was granted and the matter was adjourned for the purpose of exhibiting the documents produced by the complainant. Thereafter, from 04.05.2010 the accused started to remain absent and therefore, Non-Bailable Warrant came to be issued which was not executed till the impugned order was passed.

3.1. Thereafter, the matter came to be transferred to the learned 10th Additional Judicial Magistrate First Class vide order dated 19.06.2023 and again the non-bailable warrant came to be issued by the learned trial Court, which was also not executed. As the matter came to be transferred, the complainant was also not present therefore, on 10.10.2023 it was noted in the rojkaam that notice was issued to the complainant. On 20.12.2023 when the impugned order came to be passed, the learned advocate for the complainant remained absent, therefore, power was exercised under Section 256 of the Cr.P.C. and the complaint came to be dismissed for non-prosecution, which is impugned before this Court.

4. Heard the learned advocate Mr.Kamlesh Kotai for the applicant-original complainant and though the respondent-accused was represented through his pleader, namely, Mr.Riyaz Parmar, but he remained absent despite the matter was called out twice.

5. Learned advocate Mr.Kotai submits that from the year 2009 to 2023 almost on all occasions the complainant and his advocate remained present, however, when the matter came to be transferred before the learned 10th Additional Judicial Magistrate First Class on 19.06.2023 the complainant could not remained present because of the unawareness about listing of the matter.

5.1. Learned advocate Mr.Kotai submits that as the respondent-accused appeared once before the learned trial Court and his plea came to be recorded on 04.01.2010 thereafter, for 13 years the respondent-accused did not remain present neither the non-bailable warran