The court emphasized that acquittal under Section 256 of the Code should not occur solely due to the complainant's absence when evidence is on record, highlighting the need for judicial discretion.

ORDER :

1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Code”) seeking leave to file an appeal against the judgment and order dated 29.05.2024 passed by the learned Additional Chief Judicial Magistrate, Godhra (hereinafter referred to as ‘the learned Trial Court’) in Criminal Case No. 96 of 2021, whereby 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 N.I.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 application are as under:

2.1. The complainant was known to the accused as the accused used to frequently visit garage of the complainant and would often take some amount on loan from the complainant. That the accused had taken an amount of Rs.3,00,000/- from the complainant and the complainant had withdrawn the amount from his account with IDBI Bank, Godhra Branch and given to the accused. Thereafter, an amount of Rs.1,60,000/- was also taken for the treatment of the wife of the accused as she was suffering from cancer. That on 15.07.2020, the accused returned an amount of Rs.10,000/- in cash and gave cheque No.000046 dated 09.08.2020 for Rs.4,50,000/- of his account with the Bank of India, Godhra Branch. The cheque was deposited by the complainant in his account with HDFC Bank, Godhra Branch but, the same returned unpaid with the endorsement “Funds Insufficient” and the applicant gave the statutory demand notice on 11.08.2020, which was duly served to the accused but, the accused did not repay the amount and sent a false reply on 29.09.2020. The complainant filed the complaint before the Court of learned Chief Judicial Magistrate, Panchmahals at Godhra under Section 138 of the N.I.Act.

2.2. The accused was duly served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at Exh.06 and the evidence of the applicant was taken on record. The applicant filed the closing purshis at Exh.20 and the further statement of the accused under Section 313 of the Code was recorded. The accused filed an application at Exh.21 to send the cheque to the FSL, which was allowed by the learned Trial Court by an order dated 05.07.2022 and the accused was directed to deposit an amount of Rs.10,000/- as costs before the learned Trial Court, which was deposited by the accused on 02.08.2022. The report of the FSL was not received and a reminder was also sent to the FSL but, the learned Trial Court passed an order on 29.05.2024 and dismissed the case of the applicant under Section 256 of the Code and acquitted the accused from the offence under Section 138 of the N.I.Act.

3. Being aggrieved and dissatisfied with the impugned order, the applicant has preferred the present application seeking leave to appeal mainly stating that the applicant has filed his evidence and the matter was pending for the report from the FSL but, the learned Trial Court, without considering the evidence, has passed the order of dismissal, which is perverse and bad in law. That the leave to appeal is required to be granted.

4. Heard learned advocate Mr.Altaf Y. Charkha for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State.

5. Learned advocate Mr.Altaf Charkha for the applicant has reiterated the contents of the application and has submitted that the rojkam reflects that the matter was pending for receiving the FSL repor