A single absence of the complainant should not lead to dismissal of a complaint, as it may result in failure of justice.

JUDGMENT :

Hemant M. Prachchhak, J.

1. The appellant has preferred present Appeal under Section 378 of the Code of Criminal Procedure ("Cr. P.C." for short) against the order dated 27.12.2023 passed by the 7th Additional Senior Civil Judge, Ahmedabad (Rural) (hereinafter be referred to as “the trial Court”) in Criminal Case No. 6162 of 2022, whereby the trial Court has dismissed the Criminal Case for want of prosecution as the original complainant did not remain present under the provisions of Section 256(3) of Cr.P.C.

2. It is the case of the appellant that the appellant is in the construction business for last many years and respondent no. 3 is into the electrical contract business in the name and style of the respondent no. 2 and as the respondents had done the work at one of the sites of the appellant, the respondent used to contact the appellant for financial help and considering the old relations shared with the respondent, the appellant used to help him.

2.1 Before filing of the complaint, the respondent was in need of financial help of Rs. 2,00,000/- for some work of temple and he promised to the appellant to return the same by September 2021. Relying upon the say of the respondent, the appellant gave total Rs. 2,00,000/- to the respondent by way of IMPS and NEFT.

2.2 Thereafter, the appellant demanded the money which he had lent to the respondent, he gave post dated cheque No. 182966 of Rs. 2,00,000/- of IDBI Bank, Patan Branch. The said cheque was issued by the respondent no. 2. As the said cheque came to be dishonoured, the complainant sent the legal notice and thereafter filed the aforesaid complaint.

2.3 As the appellant and his pleader did not remain present, the Ld. Magistrate had passed order under section 256 of CrPC and thereby virtually acquitted the respondent no. 2 vide judgment dated 27-12-2023.

2.4 Being aggrieved and dissatisfied by the judgment and order dated 27-12-2023, the Appellant has preferred present Criminal Appeal under Section 378 of Criminal Procedure Code.

3. Heard Mr. Tanmay B. Karia, learned Counsel appearing for the appellant and Mr. D.R. Jatav, learned Counsel (on hybrid) for the respondent-accused.

4. Mr. Tanmay B. Karia, learned Counsel appearing for the appellant has submitted that order passed by the trial Court is contrary to the provisions of Law and fact and therefore, the same deserves to be quashed and set aside.

4.1 He has submitted that the trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefor,e the impugned judgment is unsustainable and bad in law. He has submitted that due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned judgment and therefore, the same may be quashed and set aside.

5. On the other hand, Mr. Jatav, learned Counsel for the respondent accused has submitted that after evaluating the evidence on recording the absence of learned advocate for the appellant the trial Court has passed impugned order under Section 256(3) of the Cr.P.C. and therefore, this Court may not interfere with the impugned order and dismiss the present Appeal.

6. It appears that the complaint was filed in the year 2022 and on 3.9.2022 the Court had admitted the complaint and issued process and within short span of a year the complaint was dismissed for default under Section 256(3) of Cr.P.C. on account of non presence of the complainant or his advocate.

7. It is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:-

"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 hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

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