The trial Court must consider the representation of the complainant by counsel before dismissing a case under Section 256 of the Cr.P.C.

JUDGMENT :

S.V. PINTO, J.

1. The present appeal is filed by the appellant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the order dated 06.10.2023 passed by the learned Judicial Magistrate First Class (Traffic), Vadodara in Criminal Case No. 33166 of 2019, whereby the trial Court has dismissed the Criminal Case for want of prosecution as the original complainant did not remain present under the provisions of Section 256 of Cr.P.C. and the original accused – respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”). 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 appeal as well as the record and proceedings are as under:

2.1 The appellant is the proprietor of Samarth Industries and the accused had demanded an amount of Rs.2,00,000/- towards which the appellant had issued cheque No.000009 dated 21.08.2019 of his account with UCO Bank, Vadodara Branch The appellant deposited the cheque in his account with Bank of Baroda, Pratapnagar Vadodara Branch and the cheque was returned with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 20.09.2019 which was duly served to the accused on by RPAD but the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the N.I.Act, before the Chief Judicial Magistrate, Vadodara.

2.2 The learned Judicial Magistrate First Class, (Traffic), Vadodara was pleased to consider the verification and documents produced by the appellant and take cognizance for the offence under Section 138 of the N.I.Act and passed an order to issue summons to the accused and the summons was duly served to the accused. The appellant filed his examination in chief at Exh.5 and the accused appeared before the learned Trial Court and the plea of the accused was recorded on 25.03.2022. The matter was pending for the cross examination of the appellant and as the appellant did not remain present, by an order dated 06.10.2023, the learned Judicial Magistrate First Class, (Traffic), Vadodara was pleased to dismiss the complaint for want of prosecution and want of appearance of the complainant.

3. Being aggrieved and dissatisfied by the impugned judgment and order the appellant has preferred the present Criminal Appeal under Section 378(4) of Criminal Procedure Code.

4. Heard learned advocate Mr. Anurag R. Rathor appearing for the appellant and learned APP Mr. Bhargav Pandya for the respondent – State. Though rule is served the respondent No 2 has not appeared either in person or through an advocate.

5. Learned advocate Mr. Anurag R. Rathor for the appellant has submitted that the 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. It was only due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned judgment and hence, the same may be quashed and set aside. Learned advocate further submits that a false and fabricated FIR was filed against the appellant on 17.12.2022 and thereafter the appellant was pursuing his legal remedy by filling an anticipatory bail application before the learned Sessions Court and the Hon'ble High court of Gujarat. The appellant had also preferred quashing petition before this Hon'ble Court. The appellant had preferred anticipatory bail application before the learned Sessions Court as Criminal Miscellaneous Application no. 2901 of 2022 on 30.12.2022 which came to be rejected on 06.01.2023. The appellant thereafter preferred anticipatory bail application before this Hon'ble Court on 01.04.2023 and the same came