Leave to appeal granted as trial court dismissed the case without considering the applicant's submitted documents and presence in another court.

ORDER :

(S.V. PINTO, J.) 

1. The present application is filed by the applicant – original complainant under Section 378(4) of Code of Criminal Procedure, 1973 seeking leave to file an appeal against the order passed below Exh. 1 dated 12.04.2023 passed by the learned 3^rd Additional Chief Judicial Magistrate, Surendranagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 178/2019, whereby, the learned Trial Court was pleased to dismiss the case for default for non-prosecution.

2. Heard learned advocate Mr. Manish Patel for the applicant, learned advocate Mr. A.R. Shah for the respondent no. 2 and learned APP Ms. Dhwani Tripathi for the respondent state.

3. Learned advocate Mr. Manish Patel for the applicant submits that the applicant had filed the criminal case under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to “the Act” for short) before the learned 3^rd Additional Chief Judicial Magistrate, Surendranagar and the respondent no. 2 had taken a loan from the applicant – Shriram Finance Ltd. for vehicle no. GJ-13-M-9603. The respondent no. 2 had given cheque no. 875888 dated 20.11.2018 for Rs. 5,40,017/- and cheque no. 875889 dated 23.11.2018 for Rs. 5,40,018/- from his account with Dena Bank, Sudamda Branch which were deposited by the applicant in his account with Axis Bank but both the cheques returned unpaid with the endorsement “Funds Insufficient”. The applicant had filed the complaint before the Chief Judicial Magistrate, Surendranagar and the learned Trial Court was pleased to pass the impugned order below Exh. 1 and dismissed the complaint of the applicant in his absence. Learned advocate submits that the applicant was in fact present in another Court on the same day and an affidavit of examination-in-chief and other documents were produced on record but the learned Trial Court has not appreciated the same and has passed the impugned order on 12.04.2023 and dismissed the complaint. Learned advocate submits that the applicant has good case on merits and the leave to appeal may be granted.

4. Learned advocate Mr. A.R. Shah for the respondent no. 2 submits that the learned Trial Court has passed the impugned order out of carelessness of the applicant and he did not remain present and leave to appeal may not be granted.

5. Learned APP Ms. Dhwani Tripathi for the respondent State has submitted that the learned Trial Court has passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted.

6. Perused the impugned order and prima facie it appears that the applicant in the form of affidavit of examination-in- chief and other documents were on record but the learned Trial Court has not considered the same and merely as the applicant was not present on five adjournments, the impugned order of dismissal for non-prosecution was passed. The application for leave to appeal requires consideration.

7. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application for leave to appeal is granted and disposed off accordingly.