The dismissal of a criminal complaint under Section 256 without considering the merits and circumstances of service evasion is improper.

ORDER :

1. Heard learned advocate Mr.Darsh P. Desai for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State.

2. By way of the present application, the applicant has prayed to grant leave to appeal against the judgment and order dated 07.04.2023 passed by the learned 37^th Additional Chief Metropolitan Magistrate, Ahmedabad (hereinafter referred to as “the learned Trial Court”) in Criminal Case No.3500898 of 2015.

3. Learned advocate Mr.Darsh P. Desai for the applicant submits that the applicant filed criminal complaint under Section 138 of the Negotiable Instruments Act against the respondent No.2 as the applicant had given an amount of Rs.10,00,000/- to purchase the land and the amount was given by cheque No.866873 dated 01.03.2008 from his account with Central Bank of India, Bhudarpura Branch, which was deposited by the respondent No.2 in his account and it was cleared on 03.03.2008. That as the land could not be purchased by the respondent No.2, the applicant had demanded the amount of Rs.10,00,000/- from the respondent No.2, towards which, the respondent No.2 had given a cheque No.226613 dated 04.04.2009 for an amount of Rs.10,00,000/- from his account with Standard Chartered Bank, Mithakhali Six Road, Ahmedabad Branch and on depositing the cheque, the same had returned unpaid with the endorsement “Funds Insufficient”. The applicant sent the demand statutory notice to the respondent No.2, whichw as duly served but the amount was not paid by the respondent No.2, and hence, the applicant filed a criminal case under Section 138 of the Negotiable Instrument Act before the Court of the Chief Metropolitan Magistrate, Ahmedabad. The learned Trial Court took the cognizance of the offence and the summons were issued to the respondent No.2, which was duly served and the respondent No.2 had appeared and his plea was recorded. Thereafter, the respondent No.2 did not appear and warrants including non-bailable warrant came to be issued against the respondent No.2. The respondent No.2 succeeded in avoiding the service of warrants and even non-bailable warrant could not be served to the respondent No.2. That the matter was transferred from one Court to another Court, and thereafter, the matter was placed into the dormant file by the learned Trial Court. The learned Trial Court did not appreciate these facts and, by the impugned order dated 07.04.2023, dismissed the case of the complainant under Section 256 of the Code of Criminal Procedure. Learned advocate further submits that the learned Trial Court has grossly erred in not considering the fact that the matter was pending for service of non-bailable warrant to the respondent No.2, who had succeeded in avoiding service of the non-bailable warrant and the learned advocate for the applicant was remaining present before the learned Trial Court. The applicant had also remained present before the learned Trial Court on some occasions. The learned advocate for the applicant has placed a copy of rojkam on record and submits that the applicant has a good case on merits, and therefore, the present leave to appeal may be allowed.

4. Learned APP Ms. Jirga Jhaveri for the respondent – State submits that necessary order may be passed in view of the rojkam submitted by the learned advocate for the present applicant.

5. Having heard advocates for the respective parties and considering the submission made by the parties as also the copy of rojkam produced on record, it appears that the matter was pending for service of non-bailable warrant to the respondent No.2, who had succeeded in avoiding service of warrants. The summons was duly served and thereafter, non-bailable warrant could not be served and, prima-facie, it appears that the learned Trial Court has not appreciated the above facts. The applicant has a good case on merits, and hence, the present application requires consideration and accordingly, is allowed.