IMPORTANT POINT
The discretion under Section 256 of the Cr.P.C. must be exercised judicially and fairly, and the trial court should adjourn the case or issue a warrant/summons to the accused instead of immediately dismissing the complaint for non-prosecution.

JUDGMENT :

1. Though Rule is served in the application for seeking leave to prefer an appeal, as per the report filed by the Registry, it was served on 10.01.2024, no one has appeared either in person or through an advocate. Hence, this appeal was heard in absence of the respondent-accused.

2. Present appeal is filed by the appellant-original complainant challenging the judgment and order dated 13.10.2023 passed by the learned 10th Additional Civil Judge and Judicial Magistrate First Class, Surat in Criminal Case No.52555 of 2022, whereby the accused were acquitted from the charges punishable under Section 138 of the Negotiable Instruments Act, 1886.

3. Facts of the present case are mentioned hereinbelow:

3.1. It is the case of the complainant that the complainant is doing the business in the name and style of Ridhan Fashion Private Limited and the respondents-accused are the proprietor of Pooja Collection. The complainant had sold the fabric material to the accused and for the payment of the goods, three cheques totaling the amount of Rs.1,35,126/was issued in favour of the complainant. On depositing the said cheuqes, the cheques were returned with an endorsement ‘payment stop by borrower’. Therefore, after following the due procedure prescribed under the N.I.Act, private complaint came to be filed before the competent court.

3.2. After recording the verification, summons came to be issued under Section 204 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) to the accused vide order dated 02.09.2022 which was remained unserved till the date of passing of the impugned order. On the day when the impugned order was passed, learned trial Court has observed that the matter has been pending at the stage of process to accused. However, complainant or his advocate consistently remained absent for five days i.e. on 27.04.2023, 08.06.2023, 20.07.2023, 04.09.2023 and the date on which the impugned order was passed i.e. on 13.10.2023. Learned trial Court by exercising the power under Section 256 of the Cr.P.C. had dismissed the complaint for non-prosecution due to absence of the complainant and his advocate, which is impugned before this Court.

4. Heard the learned advocate Mr.Hardik Dave for the appellant-original complainant and as observed earlier no one has appeared though Notice was issued in the application for seeking leave to prefer an appeal.

5. Learned advocate Mr.Hardik Dave for the appellant submits that initially the summons was issued by the learned trial Court thereafter, for the reissuance of the summons, the matter came to be adjourned time to time. Lastly, advocate of the complainant remained present on 05.11.2023. Thereafter, on three occasions learned trial Court either on training or was on leave and therefore, the miscommunication on the part of the learned advocate and the complainant, the complainant could not remain present for four occasion.

5.1. Learned advocate Mr.Dave submits that though the complainant was not remained present, but at the same time, stage of the trial was for the reissuance of the summons to the accused therefore, instead of dismissing the complaint, learned trial Court ought to have issued the summons or warrant to the accused and could have dispensed the presence of the complainant. However, learned trial Court has passed the impugned judgment and order of acquittal and therefore, the learned advocate has prayed to set aside the impugned order and order to restore the original criminal case to its file.

6. Considering the submissions advanced by the learned advocate for the appellant and before going into the merits, the provisions under which, the impugned order is passed, is required to be relooked. Section 256 of the Code of Criminal Procedure is reproduced herein below:

“256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the heari