The court held that a bona fide absence of counsel can justify reconsideration of a dismissal for want of prosecution, emphasizing the need for proper evaluation of evidence.

ORDER :

(S.V. PINTO, J.)

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 15.07.2024 passed by the learned Chief Judicial Magistrate, Porbandar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 929 of 2019, 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(3) of Cr.P.C. and the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”).

1.1 The respondent No. 2 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 application as well as the record and proceedings are as under:

2.1 The applicant is a finance company and the accused has taken vehicle loan of Rs.5,50,000/- for vehicle registration No. GJ-10-W-6529 on 12.12.2012 and a hire purchase agreement was executed for the same between accused and the applicant. The accused had to pay Rs.7,77,968/- in 39 installments but the accused has not paid the installments regularly and as per loan statement an amount of Rs.16,59,532/- was due and the accused issued cheque No. 460411 for Rs.7,50,000/- dated 27.12.2018 from the account with Dena Bank, Adityana Branch. The Cheque was deposited on 13.02.2019 in the account of the applicant with AXIS Bank on 27.12.2018 which was returned unpaid on 28.12.2018 with the endorsement “Funds Insufficient”. The applicant gave the statutory demand notice on 18.01.2019 which was duly served to the accused on 31.01.2019, but no payment was made and hence the applicant filed the complaint under Section 138 of the NI Act before the Chief Judicial Magistrate, Porbandar which was registered as Criminal Case No. 929 of 2019.

2.2 The learned Trial Court was pleased to consider documents produced and took cognizance for the offence under Section 138 of the NI Act and issue summons to the accused.

2.3 The summons has not been served since the accused was not residing at the given address and the learned Trial Court had issued warrant which was duly executed but accused did not remain present and as the matter was pending since long and the complainant did not make attempts to proceed further, by an order dated 15.07.2024, 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 the present leave to file an appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023.

4. Heard learned advocate Mr. Manish J. Patel appearing for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State. Though served respondent No. 2 has not present either in person or through an advocate.

5. Learned advocate Mr. Manish J. Patel 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 judgment 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 impugned order 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 advoca