The absence of a party's advocate due to a bona fide mistake should not result in dismissal of a case, and courts must properly consider all evidence before making such decisions.

ORDER :

(S.V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the order dated 29.07.2024 passed by the learned 33^rd Additional Chief Judicial Magistrate, Ahemedabad (N.I. Court) (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 39056 of 2017, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution as the applicant did not remain present under the provisions of Section 256 of Cr.P.C. and the respondent Nos. 2 and 3 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”).

1.1 The respondent Nos. 2 and 3 are hereinafter referred to as “the accused” as they stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled out from the memo of the present application as well as the record and proceedings are as under:

2.1 The applicant is the authorized person of a private company dealing in the business of investment in real estate, real estate development and allied business and respondent No. 3 is Chairman of the respondent No. 2 society. The accused has taken a loan of amount Rs.10,00,00,000/- through RTGS from the applicant and a loan agreement was executed between applicant and accused on 09.10.2016. The accused issued a cheque No. 711487 for Rs.45,00,000/- dated 01.04.2017 from his account with State Bank of India. The cheque was deposited on 11.04.2017 in the bank of the applicant which was returned unpaid on 13.04.2017 with the endorsement “Funds Insufficient”. The applicant gave the statutory demand notice on 19.04.2021 but no reply was given and no payment was made hence the applicant filed the complaint under Section 138 of the N I Act before the Chief Judicial Magistrate, Ahmedabad which was registered as Criminal Case No. 39056 of 2017.

2.2. The learned Trial Court was pleased to consider the affidavit, documents produced and the examination in chief of the applicant and took cognizance for the offence under Section 138 of the N I Act and issued summons to the accused.

2.3. The accused was duly served with the summons and appeared before the learned Trial Court and the plea of the accused was recorded in 2017 and statement under section 313 was recorded on 15.07.2022. The matter was adjourned multiple times and by an order dated 29.07.2024, the learned Trial Court was pleased to pass an order under Section 256 of The Code of Criminal Procedure and dismiss the complaint.

3. Being aggrieved and dissatisfied by the impugned order the applicant has preferred present leave to file an appeal under Section 378(4) of the Code of Criminal Procedure, 1973.

4. Heard learned advocate Mr. Pranav D. Thakkar appearing for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State.

5. Learned advocate Mr. Pranav D. Thakkar for the applicant has submitted that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore the impugned is unsustainable and bad in law. Learned advocate further submits that due to a bonafide mistake, the advocate of the applicant did not remain present on the date of passing of the impugned order and therefore, the same may be quashed and set aside.

6. Learned APP Ms. Jirga Jhaveri for the respondent - state has submitted that after recording the absence of learned advocate for the applicant the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C. and hence, this Court may not interfere with the impugned order and have urged this Court to dismiss the present application.

7. Considering the submissions of learned advocate for the applicant and also the impugned order. The submission of the learned advocate that the further statement under Section 313 of the Code of C