The court emphasized that a complaint should not be dismissed for non-appearance of the complainant if represented by counsel, allowing for adjournment under Section 256 of the Cr.P.C.

ORDER :

(S.V. PINTO, J.)

1. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the order dated 12.07.2024 passed by the learned 7^th Additional Chief Judicial Magistrate, Ahmedabad (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 6717 of 2022, 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 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” in the rank and file 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 appeal as well as the record and proceedings are as under:

2.1 The appellant is dealing in the business of broadcasting solutions for Outdoor/Radio/TV/Printing and the accused had a business transaction for broadcasting advertisement for an amount of Rs.15,32,860/- and the accused issued five cheques from the account of accused with State Bank of India as follows:

The appellant deposited the cheques and the cheques were returned with the endorsement “Account Closed”. The appellant gave the demand statutory notice which was duly served to the accused, but no reply was given and the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the N I Act, before the Court of the Chief Judicial Magistrate, Ahmedabad.

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 did not appear and a bailable warrant was issued. The accused appeared before the learned Trial Court and the plea was recorded on 20.03.2023 and by an order dated 12.07.2024, 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. Bhash H. Mankad appearing for the appellant, learned APP Ms. Dhwani Tripathi for the respondent – State and learned advocate Mr. Kuldeep Adesara for the respondent No. 2 and 3.

5. Learned advocate Mr. Bhash H. Mankad 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. Dhwani Tripathi for the respondent – State and Mr. Kuldeep Adesara for the respondent No. 2 and 3 have submitted that after recording the absence of learned advocate for the appellant 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 appeal.

7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:-

"256. Non-appearance or death of complainant.—

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the ac