The court granted leave to appeal, emphasizing the importance of the applicant's diligence in prosecution despite the respondent's avoidance of service.

ORDER :

(S. V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 419(3) of Bharatiya Nagarik Surakhsha Sanhita , 2023 seeking leave to file an appeal against the order passed below Exh. 1 dated 12.12.2024 passed by the learned 2^nd Additional Chief Judicial Magistrate, Navsari (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 13564/2020, whereby, the learned Trial Court was pleased to dismiss the case for default for non-prosecution.

2. Heard learned advocate Mr. Shriraj Shah for the applicant and learned APP Ms. Dhwani Tripathi for the respondent state.

3. Learned advocate Mr. Shriraj Shah 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 Chief Judicial Magistrate, Navsari and the summon was issued to the respondent no. 2 which was received by his father and along with the summon, the statement of his father was recorded, wherein, he has stated that the respondent no. 2 is residing in Himachal Pradesh. The learned Trial Court issued warrants to the respondent no. 2 which could not be served and learned advocate submits that on every adjournments, the applicant and his advocate were present and they have preferred application for issuance of summons. On 12.12.2024, the applicant was present along with his advocate and the respondent no. 2 was not present but the learned Trial Court was pleased to pass the order below Exh. 1 and dismissed the complaint for non-prosecution. Learned advocate submits that the respondent no. 2 was avoiding service and even though the applicant was vigilant and had made all efforts to get the warrant served, the same could not be served and the learned Trial Court has passed the impugned order. Learned advocate submits that the applicant has a good case on merits and the leave to appeal may be granted.

4. Learned APP Ms. Dhwani Tripathi for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted.

5. Perused the impugned order passed by the learned 2^nd Additional Chief Judicial Magistrate, Navsari dated 12.12.2024 and perused the copy of the rojkaam filed by the learned advocate for the applicant. Prima facie, it appears that the applicant or his advocate were present before the learned Trial Court on each and every date and the learned Trial Court has passed the order under Section 256 of the Code of Criminal Procedure , 1973 which is required to be passed in the absence of the applicant. The application for leave to appeal requires consideration.

6. 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.