The absence of an advocate due to a bonafide mistake can justify reconsideration of a dismissal for want of prosecution under Section 256 of the Cr.P.C.

ORDER :

(S.V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the order dated 15.12.2022 passed by the learned 4^th Additional Chief Judicial Magistrate, Rajpipla (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 496 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 a vehicle loan for Rs.2,20,000/- for the vehicle registration No. GJ-20-T-3705 on 16.07.2014 and a hire purchase agreement was executed for the same between accused and applicant. The accused issued cheque No. 859365 for Rs.5,00,000/- dated 11.02.2019 from his account with Bank of Maharashtra, Rajpipla Branch. The cheque was deposited on 13.02.2019 in the bank of the applicant which returned unpaid with the endorsement “Refer to Drawer Not Arrange for”. The applicant gave the statutory demand notice on 12.03.2019 which was duly served to the accused and no payment was made hence the applicant filed the complaint under Section 138 of the NI Act before the Chief Judicial Magistrate, Rajpipla which was registered as Criminal Case No. 496 of 2019.

2.2 The learned Additional Chief Judicial Magistrate, Rajpipla was pleased to consider the 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 not served since the accused was not residing at the given address and the learned Trial Court had issued warrant but the same returned unserved and by an order dated 15.12.2022, the learned Additional Chief Judicial Magistrate 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 378(4) of the Code of Criminal Procedure, 1973.

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 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 documents and has passed the impugned order under Section 256 of the Code