The court emphasized that a dismissal under Section 256 requires full consideration of all evidence on record, and failure to do so justifies allowing an appeal.

ORDER :

1. The present application is filed by the applicant – original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the order dated 04.07.2024 passed by the learned Judicial Magistrate First Class, Halol (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1071 of 2021, 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. 1 to 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. 1 to 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 respondent No. 1 is company and the respondent Nos. 2 and 3 are authorized officers of the company and they had purchased machinery for a total amount of Rs.68,42,899.801/-. An amount of Rs.39,23,554/- was repaid and three cheques for the remaining amount i.e. cheque No.076276 dated 06.05.2020 for an amount of Rs.12,00,000/-, cheque No.076277 dated 05.07.2020 for an amount of Rs.12,00,000/- and cheque No.076278 dated 07.03.2021 for an amount of Rs.4,80,000/- from the account of accused with ICICI Bank were issued. The Cheques were deposited in the bank of the applicant which returned unpaidwith the endorsement “Payment Stopped by Drawer”. The applicant gave the statutory demand notice on 05.04.2021 and no payment was made hence the applicant filed the complaint under Section 138 of the N I Act before the Judicial Magistrate First Class, Halol which was registered as Criminal Case No. 1071 of 2021.

2.2. The learned Trial Court was pleased to consider the affidavit, documents produced and the examination in chief of the applicant produced at exhibit 4 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. The matter was pending for cross examination of the applicant but by an order dated 04.07.2024, 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 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023.

4. Heard learned advocate Mr. P. M. Dave appearing for the applicant and learned APP Ms. Dhwani Tripathi for the respondent – State.

5. Learned advocate Mr. P. M. Dave 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 order is unsustainable and bad in law. Learned advocate further submits that due to a bonafide mistake, the applicant did not remain present on the date of passing of the impugned order. Moreover the affidavit of examination in Chief was on record but the same has not been appreciated by the learned Trial Court and learned advocate has urged this court to allow leave to file an appeal in this matter.

6. Learned APP Ms. Dhwani Tripathi for the respondent - state has submitted that after recording the absence of 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 and documents produced by the learned advocate for the applicant on r