The court upheld the dismissal of a complaint for want of prosecution due to the complainant's repeated absences, emphasizing the need for timely justice and the prosecution's duty to appear.

ORDER :

1. The present leave to appeal is filed by the applicant – original complainant under Section 419 (4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) against the judgment and order dated 07.01.2025 passed by the learned Additional Chief Judicial Magistrate, Rajkot (herein after referred to as the “learned Trial Court”) in Criminal Case No. 9863 of 2023, whereby the learned Trial Court was pleased to dismiss the case for want of prosecution as the original complainant did not remain present under the provisions of Section 256(3) of the 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 partner of Rajendra Industries and engaged in the business of trading and manufacturing of moulded plastic articles and plastic products, and the accused is the distributor/wholesale dealer of the goods of the firm of the applicant. The accused had ordered goods which were sent by bills dated 23.12.2021, 27.12.2021, 19.01.2022 and 21.01.2022. As per the accounts an amount of 22,348/- was outstanding towards which the accused gave cheque No. 000050 dated 15.02.2023 of his account with The Ahmedabad District Co-operative Bank Limited, Dhandhuka Branch, Dhandhuka which was deposited by the applicant in his account, with Kotak Mahindra Bank on 18.04.2023 but the cheque returned unpaid with the endorsement “Funds Insufficient”. The applicant gave the demand statutory notice dated 25.04.2023 to the accused which was duly served, but the accused did not return the amount and hence the applicant filed the complaint under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Rajkot.

2.2 The learned Additional Chief Judicial Magistrate, Rajkot was pleased to consider the affidavit, documents produced and examination in chief of the applicant and took cognizance for the offence under Section 138 of the N I Act and passed an order to issue summons to the accused. The summons was duly served to the accused and the accused appeared before the learned Trial Court and on the first date the accused bonafidely deposited the amount of cheque of Rs.22,350/- vide receipt No. 5197666 (C 1161/24-25 dated 26.11.2024) in the court on 26.11.2024. The applicant filed the affidavit of examination in chief and the matter was pending for cross examination. The plea of the accused was recorded at exhibit 08 wherein the accused denied the offence and further stated that due to a financial crunch, there was a delay in repaying the amount. The matter was pending for the cross examination of the applicant, and the applicant was not present on 07.12.2024. The learned advocate for the applicant gave an exemption application at exhibit 9 and the learned Trial Court observed that the accused had deposited the entire amount before the Court, but instead of withdrawing the complaint merely with the intention of harassing the accused, the application was filed and the application was allowed on condition that an amount of 2000/- be deposited as cost with the District Legal Service Authority and the matter was adjourned to 07.01.2025. On 07.01.2025 the applicant did not remain present and his advocate gave an application at exhib