The trial court must consider all evidence before dismissing a case for absence, ensuring the right to a fair trial is upheld.

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 27.06.2024 passed by the learned Judicial Magistrate First Class, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 30343 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(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 filed a complaint against the accused under Section 138 of the Act, as the accused had taken a friendly loan of Rs.8,00,000/- from the applicant and a promissory note has been executed and the accused had issued cheque No.000019 for the amount of Rs. 8,00,000/- dated 28.12.2020 from his account with Bank of Baroda, Surat Branch. The applicant deposited the cheque on 08.01.2021 in his bank account and the cheque was dishonored and the reason mentioned in the return memo dated 16.01.2021 was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 01.02.2021 by R.P.A.D which was duly served on 02.02.2021 and no payment was made and hence the applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Surat under Section 138 of the NI Act, 1881 which was registered as Criminal Case no. 30343 of 2021.

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 issued summons to the accused.

2.3 The Summons was duly served and the matter was pending for cross examination and as the applicant or his advocate did not remain present, by an order dated 27.06.2024, 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. Jigar L. 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. Jigar L. 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 same 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 advocate for the applicant and also the impugned order and documents produced by the learned advocate for the applicant on record it appears that the learned Trial Court has not considered the affidavit of examination in chief and other documents and has passed the impugned order under Section 256 of the Code of Criminal Proced