The absence of a complainant does not justify acquittal if evidence is already on record; courts must allow cases to proceed on merits.

JUDGMENT :

1. The present appeal is filed by the appellant – original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita , 2023 (for short “BNSS”) against the order dated 31.08.2024 passed by the learned Principal Senior Civil Judge, Civil Court, Mangrol, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 261 of 2021 whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution as the appellant did not remain present under the provisions of Section 256 of Cr.P.C. and the respondent No. 1 - 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 No. 1 is hereinafter referred to as “the accused” as he 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 appeal as well as the record and proceedings are as under:

2.1. The appellant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a loan of Rs.25,00,000/- from the appellant during February 2015 to March 2017 and the accused had issued a cheque and the cheque was dishonored and a complaint was filed under Section 138 of the N I Act. The Parties arrived at an amicable settlement and a notarized promissory note No.15 of 2017 has been executed by which the accused issued four cheques i.e. cheque No.561749 dated 20.10.2020, No.561753 dated 21.10.2020, No.561752 dated 22.10.2020 and No.561751 dated 23.10.2020 each of Rs.5,00,000/- from his account with State Bank of India, Kosamba Branch, Surat. The appellant deposited the cheque No.561749 dated 20.10.2020 and the cheque No.561753 dated 21.10.2020 in her account with ICICI Bank, Kosamba Branch, Surat and the cheques were dishonored and the reason mentioned in the return memo was “Insufficient Fund”. The appellant sent the statutory demand notice to the accused on 20.11.2020 by R.P.A.D which was duly served on 21.11.2020 and no payment was made and hence the appellant filed the criminal complaint before the Court of the learned Principal Senior Civil Judge, Civil Court, Mangrol, Surat under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 261 of 2021.

2.2. The learned Trial Court was pleased to consider the affidavit, documents produced and examination in chief of the appellant and took cognizance for the offence under Section 138 of the N I Act and passed an order to issue summons to the accused. The accused appeared before the learned Trial Court and the plea was recorded and the affidavit of examination in Chief was taken on record and the matter was pending for Cross examination of the appellant. By an order dated 31.08.2024, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant.

3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378 of Criminal Procedure Code.

4. Heard learned advocate Mr. Umang P. Raval appearing for the appellant, learned APP Ms. Jirga Jhaveri for the respondent No. 2 – State and learned advocate Mr. Dipak Sindhi for the respondent No. 1.

5. Learned advocate Mr. Umang P. Raval for the appellant 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 advocate of the appellant 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 No. 2 – State and learned advocate Mr. Dipak Sindhi for the respondent No. 1 have submitted that after recording the absence of learned advocate for the appellant the learned Trial Court has passed the impu