The court upheld the dismissal of a complaint for non-prosecution, emphasizing the need for timely justice and the consequences of a complainant's repeated absence.

JUDGMENT :

M. K. Thakker, J.

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5634 of 2023

As this Court is deciding the main matter on merits, the leave is granted to prefer an appeal and this application is disposed of accordingly.

R/CRIMINAL APPEAL NO. 781 of 2023

1. With the consent of parties, matter is taken up for final hearing. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order passed by the learned 3rd Additional Chief Judicial Magistrate, Vadodara below Exh. 1 in Old Criminal Case No.3707 of 2006 which was renumbered as Criminal Case No.41643 of 2006 dated 22.10.2021 dismissing the complaint for non-prosecution by exercising the powers under Section 256 of the Code of Criminal Procedure, 1973.

2. It is the case of the complainant that the complainant is having the factory of manufacturing plastic granules. The complainant is doing the job work and the accused was visiting the factory of the complainant for doing the job work of the plastic granules. It is the case of the complainant that for the payment on the job work, cheque bearing Cheque No.656624 dated 13.3.2006 for the amount of Rs.24,080/- and Cheque No.361506 dated 23.6.2006 for the amount of Rs.20,19,146/-was issued. On depositing the said cheque with the bank, it was returned with the endorsement of ‘insufficient fund’ on 12.9.2006. After following the procedure prescribed under the Negotiable Instruments Act, 1881, a private complaint was filed before the competent court being Criminal Case No.41643 of 2006. After recording the verification, the learned trial Court had issued the process under Section 204 of the Code of Criminal Procedure, 1973 vide order dated 12.12.2006. The accused appeared and his plea was recorded on 20.9.2007 and thereafter further statement was recorded on 20.10.2010. It was pleaded by the accused that the payment of disputed cheque has already been made and false case is filed. The accused was examined and his cross-examination was also conducted. Thereafter, the application below Exh. 73 was filed to send the cheque before the handwriting expert for verification. The said application was allowed on 23.6.2016 with condition that the accused would deposit the costs of Rs.20,000/-. Initially, the specimen was sent below Mark 58/7 to 58/15. Thereafter, the handwriting expert authority wrote a letter on 23.6.2017 below Exh. 97 informing to send again the specimen in a proper format. Therefore, the order was passed below Exh. 100 on 23.10.2019 to send 36 other specimen to the handwriting expert. Thereafter, the matter was adjourned for 27 times, but the complainant remained failed in appearing before the court and providing the specimen. It is the further case of the complainant that the application was filed below Exh. 115 by the respondent-accused to dismiss the matter on the ground of non-prosecution on the ground that neither the complainant is complying with the order passed by the learned trial Court dated 23.6.2016 and 23.10.2019 nor the complainant is remaining present. Thereafter, the learned advocate for the complainant had filed purshis below Exh. 116 stating that he did not want to continue as an advocate of the complainant and for that, he had also issued notice to the complainant. It transpires from the record that the complainant thereafter had engaged another advocate and the advocate was appeared on 7.10.2021 and filed Vakalatnama below Exh. 117 and on the day when the impugned order was passed, neither learned advocate nor complainant remained present and therefore, the learned trial Court had dismissed the matter for non-prosecution by exercising powers under Section 256 of the Code of Criminal Procedure which is impugned before this Court.

3. Heard learned advocate Mr. Dhruv K. Dave for the applicant and learned advocate Mr. P.P. Majmudar for the respondent-accused.

4. Learned advocate Mr. Dave submits that lastly, the advocate for the complainant remained p