IMPORTANT POINT
The power under Section 256 of the Code of Criminal Procedure should be exercised fairly and judicially 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 dated 06.07.2023 passed by the learned Additional Civil Judge, Dabhoi in Criminal Case No.3749 of 2021 below Exhibit 1 whereby, the accused came to be acquitted from the charges under Section 138 of the Negotiable Instruments Act by exercising the power under Section 256 of the Code of Criminal Procedure.

2. The case of the appellant - original complainant is that the complainant is working as a contractor and given the hand loan of Rs.5,25,000/- in cash to the respondent – accused in the year 2019. On being demand of the said amount, the cheque bearing No.008878 for the amount of Rs.5,25,000/- was issued in favour of the complainant with an assurance that on depositing the said cheque, it would be encashed and the amount would be credited in the account of the complainant.

3. On depositing the said cheque, it was dishonored with return memo with an endorsement of ‘fund insufficient’ on 30.06.2021. Therefore, after following the procedure prescribed under the N.I. Act, the private complaint came to be filed before the competent Court for the offence punishable under Section 138 of the N.I. Act. The day when the impugned order was passed i.e. on 06.07.2023, learned advocate for the complainant was not present neither the complainant was present and as the stage of the trial was of cross-examination of the complainant, the learned trial Court has dismissed the complaint due to absence of the complainant and his advocate which is impugned before this Court.

4. Heard learned advocate Mr.Vedant Gaikwad for the appellant and learned advocate Mr.Hariom Raj for the respondent-accused.

5. Learned advocate submits that after the summons came to be issued, the application was filed by the learned advocate for interim compensation below Exhibit 8 which was remained undecided till the impugned order was passed. The learned advocate submits that in the rojkam, though on 03.12.2021 the learned advocate for the complainant had filed an application, the trial Court has observed that the complainant and his advocate were absent. The learned advocate submits that though the accused initially appeared on 03.12.2021, the vakalatnama on behalf of the advocate of the accused was filed below exh.11 on 18.04.2022 i.e. four months from the date of appearance before the learned trial Court. Learned advocate submits that thereafter also, four adjournments were granted by the learned trial Court for recording the plea of the accused, which was ultimately recorded on 12.09.2022 below exh.13C. The learned advocate submits that only on two consecutive dates i.e. on 08.04.2023 and 16.06.2023, the complainant and his advocate remained absent due to miscommunication and the impugned judgment was passed by the learned trial Court on 06.07.2023. The learned advocate submits that the matter came to be adjourned for number of occasions for filing the vakalatnama of the advocate of the accused and for recording the plea of the accused however, only for not remaining present for two consecutive dates, the impugned order was passed dismissing the complaint for non-prosecution.

6. The learned advocate submits that in fact, the application exh.8 which was preferred on 03.12.2021, remained undecided till the impugned order was passed by the learned trial Court on 06.07.2023. The learned advocate submits that instead of exercising the power under Section 256 of the Code of Criminal Procedure dismissing the complaint, the learned trial Court ought to have decided the interim compensation application below exh.8 however, without adopting that course, the impugned judgment and order of acquittal was passed. The learned advocate submits that it is true that for two consecutive dates, the learned advocate for the complainant and the complainant remained absent and, therefore, appropriate cost which would be decided by the Court, would be deposited with the learne