The court emphasized that cases should be decided on merits rather than technicalities, restoring the complaint for fresh adjudication after the trial Court's dismissal for non-appearance.

JUDGMENT :

Hemant M. Prachchhak

1. In compliance of the order passed by this Court 7.10.2024, the accused is present before this Court with an undertaking dated 9.10.2024 and the said undertaking is taken on record along with report dated 9.10.2024 submitted by learned APP.

2. Mr. Patel, learned Counsel for the respondent accused has identified respondent accused - his client, who is present before this Court. With consent of the parties the Appeal is taken for its final adjudication today.

3. The appellant has preferred the present Appeal under Section 378 of the Code of Criminal Procedure ("Cr.P.C." for short) against the judgment and order of acquittal dated 1.3.2024 passed by the learned Additional Chief Judicial Magistrate, Junagadh (hereinafter be referred to as “the trial Court”) in Criminal Case No. 2437 of 2020, whereby the respondent-original accused No. 2 was acquitted from the charges levelled against him under Section 138 of the Negotiable Instrument Act, (hereinafter be referred to as "the N.I. Act").

4. The appellant herein is original complainant and the respondent No. 2 is the original accused in Criminal Case No. 2437/2020. As per the appellant the Criminal Case was filed u/s. 138 of N.I. Act for dishonor of cheque of Rs. 2,00,000 (Two Lack only) and the case was filed in the Court of Ld. Addl. Chief Judicial Magistrate, Junagadh.

5. As per the case of the complainant, the case was at the stage of service of Summons to the respondent accused and the process of issuance of Summons continues on various dates. The first date was on 25/09/2020 and the summons was to be served on 16.12.20. The summons was served on 24.10.2022. Despite service of Summons of the Court, the respondent accused did not remain present nor engage an advocate. Therefore, the order of issuance of bailable warrant was ordered to be issued against the respondent accused person. However, neither the bailable warrant was served, nor it was returned back. The fresh bailable warrant was issued on 28.3.2023, which was returned as unserved. The fresh bailable warrant was issued on 18.5.2023 and made returnable on 11.8.2023. Once again the bailable warrant was returned back on 11.8.2023. The next date was fixed on 6.10.2023. The stage was that the complainant was to furnish new address of the accused and next date was 24.11.2023. The matter was kept on 21.3.2024. On that day, nor complainant nor his advocate remained present and therefore, the Criminal Case No. 2437 of 2020 has been dismissed u/s. 256 of Cr.P.C. and the respondent accused was acquitted by Ld. Addl. Chief Judicial Magistrate, Junagadh vide Judgment and order dated 01.03.2014.

5.1 In view of the above facts, the appellant has preferred present appeal and challenged the impugned order passed by the trial Court.

6. Heard Mr. Joshi, learned Counsel for the appellant and Mr. Patel, learned Counsel for the respondent-accused.

7. Mr. Joshi, learned Counsel for the appellant has submitted that once the summons is issued, there is no provision with regard to issue a fresh summons for the purpose of cross-examination of the complainant or recording the oral evidence of the concerned witness and therefore, the observations made by the trial Court in impugned order in paragraph No.3 is absolutely unjust and illegal.

8. Mr. Joshi, learned Counsel for the appellant has submitted in view of the above, the matter may be remanded back and the same may be decided by the trial Court after giving proper opportunity to both the sides and after producing documentary as well as oral evidence.

9. On the other hand, Mr. Patel, learned Counsel for the respondent vehemently opposed this submission however, he is unable to assail the impugned order passed by the trial Court.

10. I have perused the relevant and cogent material available on record. I have also gone through the relevant case papers and the order passed by the trial Court.

11. It is appropriate to take into account Section 256 of the Cr. P.C. which reads as un