The court ruled that a single absence should not result in case dismissal when the applicant has a strong case and was present on other occasions.

ORDER :

1. The present application is filed by the applicant seeking leave to appeal against the judgment and order dated 10.01.2025 passed by the learned Chief Judicial Magistrate, Anand (hereinafter referred to as the “learned Trial Court”) in Criminal Case No.5017 of 2023, whereby the learned Trial Court acquitted the respondent No.2 from the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’).

2. Heard learned advocate Mr. Kewal J Shah for the applicant and learned APP Ms. Jirga Jhaveri for the respondent No.1 – State.

3. Learned advocate Mr. Kewal J Shah for the applicant submits that the applicant had filed the complaint under Section 138 of the NI Act before the learned Chief Judicial Magistrate, Anand on 04/07/2023 and the respondent No. 2 had appeared and the plea of the respondent No. 2 was recorded at Exh. 7. The applicant had filed the affidavit of examination in chief at Exh. 4 and had also produced the documents on record and the matter was pending for the cross-examination of the applicant. That the respondent No. 2 was not cross examined by the applicant. Even through, the applicant was present on many occasions and on 10.01.2025, when the applicant was not present, the learned trial Court was pleased to pass the impugned order under Section 256 of the Code of Criminal Procedure and dismissed the case of the applicant. Learned advocate for the applicant submits that the affidavit of examination in chief and evidence on record and the learned trial Court has not appreciated the same and even though the applicant was absent only on one occasion, the impugned order came to be passed. Learned advocate for the applicant submits that the the applicant has good case on merits and he is ready and wiling to conduct the matter before the learned trial Court and hence leave to appeal must be granted.

4. Learned APP Ms. Jhaveri for the respondent No.1 - State submits necessary order may be passed perusing the paper rojkam as also the paper book on record.

5. Considering the submissions of the learned advocate for the applicant and also the copy of the rojkam and small paper book produced before this Court, prima-facie it appears that the matter was pending for the cross-examination of the applicant and was not cross examined by the applicant. Even though, the applicant was present on every occasions, the impugned order came to be passed. Learned advocate for the applicant submits that the the applicant has good case on merits and he is ready and wiling to conduct the matter and the application for leave to appeal deserves 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.