The absence of a complainant's advocate does not justify automatic dismissal of a case if evidence is on record and the accused is avoiding service.

ORDER :

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 22.02.2023 passed by the learned 5^th Additional Chief Judicial Magistrate, Vadodara (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 10886 of 2020, whereby the learned Trial Court has dismissed the criminal case for want of prosecution as the appellant did not remain present under the provisions of Section 256(3) of Cr.P.C. and the respondent Nos. 2 to 4 - 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 notice in this matter was issued to the respondent Nos. 2 to 4 at the same address of the respondent No. 2 mentioned in the original complaint and the notice was received by the Finance/Account Head who was working for the past 20 years for the respondent No. 2 on behalf of the respondent Nos. 3 and 4. A copy of the death certificate of the respondent No. 4 was produced and the respondent No. 4 was deleted as per the order dated 26.09.2023.

1.2 The respondent Nos. 2 to 4 are hereinafter referred to as “the accused” in the rank and file as they 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 Bank of Baroda and the accused No 2 & 3 are partners of the partnership firm accused no. 1. The accused No.1 through its partners Nos. 2 & 3 had availed Cash Credit and Bank Guarantee facilities, from the complaint bank to conduct their business and had availed loan from Alkapuri Branch, Vadodara which was Existing Cash Credit (Hypothecation of Stock cum Book Debts) of Rs. 5,50,00,000/- (Rupees Five Crores Fifty Lacs Only) and Bank Guarantee (Performance/ Financial) of Rs. 4,75,00,000/- (Rupees Four Crores Seventy Five Lacs only, and total exposure Rs. 10,25,00,000/-(Rupees Ten Crores Twenty Five Lacs Only. As per Ledger Statement dated 12.02.2020 the accused had an outstanding amount of Rs. 6,37,33,173.60/- (Rupees Six Crores Thirty-Seven Lacs Thirty Three Thousand One Hundred & Seventy Three & Sixty Paise Only) and the account of the accused became irregular and was classified as Non-Performing Assets (N.P.A) as per the guidelines of the RBI. The case of the accused was transferred to the present ZOSARB for further recovery and to liquidate the loan the accused issued cheque No. 002115 for Rs.50,00,000/- dated 18.12.2019 of HDFC Bank. The appellant deposited the cheque and the cheque was returned with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 11.02.2020 and as per online acknowledgment the notice was duly served to the accused on 12.02.2020 by RPAD which was signed by the accused but the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the NI Act, before the learned 5th Additional Chief Judicial Magistrate, Vadodara.

2.2 The learned 5^th Additional Chief Judicial Magistrate, Vadodara was pleased to consider the affidavit, documents produced vide a list at exhibit 3 and examination in chief of the appellant produced at exhibit 4 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 returned unserved to the accused. The accused did not appear before the learned Trial Court and the matter was pending for a fresh address for issuing a fresh summons. By