JUDGMENT :

Order in Criminal Misc. Application

As this Court deems it fit to decide the case on merits, the formal leave seeking to prefer an appeal is granted. The application for leave to prefer an appeal stands disposed of accordingly.

Order in Criminal Appeal

1. This appeal is filed challenging the judgment and order dated 27.01.2020 passed by the learned 2nd Additional Judicial Magistrate First Class, Padra in Criminal Case No.707 of 2017 whereby, the learned trial Court has dismissed the complaint for non-prosecution.

2. It is the case of the complainant that the complainant, who is the financial institution, has sanctioned the term loan of Rs.5,54,000/- for purchase of the car on 10.09.2015 to the respondent – accused. The loan account was also opened in the complainant branch being account no.352224768978. After availing the loan facility, the respondent – accused remained failed in making the payment of installment and on raising the demand of the loan amount, the cheque of Rs.5,44,237/- being cheque No.703930 dated 12.01.2017 of the State Bank of India, Sun Pharma Road, Atladra branch was given. On depositing the said cheque, it was returned with an endorsement of ‘insufficient fund’ and, therefore, the demand notice under Section 138 of the Negotiable Instruments Act was issued and thereafter, on following the procedure prescribed under the Act, the private complaint came to be filed. On filing the private complaint, summons came to be issued on 15.02.2017, making it returnable on 15.03.2017. On 28.06.2017, the accused appeared to provide above paper, it was adjourned. On 06.09.2017, again accused remained absent therefore, case came to be adjourned from time to time. On 28.06.2018, non-bailable warrant came to be issued to the accused. From the record of the learned trial Court, it transpires that again, the respondent – accused remained absent and, therefore, application for issuance of non-bailable warrant was given, which was allowed on 11.10.2018. Though the non-bailable warrant remained unexecuted till the date of impugned order and because of non-remaining present by the complainant and his advocate for four consecutive dates, the learned trial Court has passed the judgment and order, acquitting the respondent – accused by exercising the powers under Section 256 of the Code of Criminal Procedure, which is impugned before this Court.

3. Heard learned advocate Mr.Rituraj Meena for the complainant. Though, the notices were served through publication in the newspaper on 22.08.2023, the respondent – accused has chosen not to appear either in person or through an advocate.

4. Learned advocate Mr.Meena submits that the complainant is the bank and financial facility, which was availed by the respondent – accused was not repaid and the cheque which was issued, was dishonoured, therefore, the learned advocate of the complainant has filed the private complaint. The learned advocate submits that though the complainant and his advocate remained present on almost all occasions except four consecutive dates i.e. on 20.08.2019, 03.10.2019, 15.10.2019 and 28.11.2019, the learned trial Court has dismissed the complaint for non-prosecution. The learned advocate submits that for not remaining present, the bank has issued the notice to the concerned advocate on 12.05.2020 and this being a public money which was remained unpaid by the respondent – accused, due to the same, there would be a loss to the public exchequer. The learned advocate submits that it is true that the learned advocate for the complainant did not remain present however, at the same time, the non-bailable warrant which was issued against the respondent – accused, remained unexecuted. Therefore, for not remaining present, no any change would have made in the proceedings.

5. The learned advocate submits that the proceedings under Section 138 is being a time barred litigation, by dismissing the complaint, the complainant would be left remediless. The learned advocate furth