Acquittal under Section 256 of Cr.P.C. is improper if the complainant has presented evidence, necessitating judicial discretion rather than automatic dismissal for non-appearance.

JUDGMENT :

S.V. PINTO, J.

1. Though the bailable warrant is served to the respondent no.2, he has not appeared before this Court either in person nor has engaged a lawyer to make submissions on his behalf.

2. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the order passed by the learned “2nd Additional Chief Judicial Magistrate, Bharuch in Criminal Case No.12672 of 2022 on 12.04.2023.”, 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 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 N.I.Act”).

2.1. The appellant and the respondent No. 2 are hereinafter referred to as “the complainant” and “the accused” as they stood in the original case for the sake of convenience, clarity and brevity.

3. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:

3.1. The complainant is a money lender and doing his business in the name of Nisham Finance. The accused had personally contacted the complainant and had borrowed an amount of Rs.90,000/- and as per his demand, on 21.07.2022, an amount of Rs.40,000/- was transferred by IMPS in the bank account of the accused with State Bank of India, Bharuch Branch and another Rs.20,000/- was given in cash on the same day. On 29.07.2022, an amount of Rs.15,000/- was transferred by IMPS in the bank account of the accused with State Bank of India, Bharuch Branch and an amount of Rs. 7500/- was given by cash and once again on 06.08.2022, an amount of Rs. 5000/- was given by cheque no. 228284 of Ujjivan Small Finance Bank, Bharuch and an amount of Rs. 2500/- was given in cash. The accused had to pay interest at the rate of 1.25% per month and was to repay the amount of Rs. 90,000/- with interest at the rate of 1.25%. The accused returned an amount of Rs. 2850/- and gave cheque no. 592987 dated 30.08.2022 for Rs.87,150/- his account with State Bank of India, Bharuch Branch. The cheque was deposited by the applicant in his account with, Ujjivan Small Finance Bank, Bharuch Branch on 06.09.2022, but the cheque returned unpaid with an endorsement “Exceeds Arrangements”. The applicant gave the statutory demand notice through his advocate on 09.09.2022 which was returned with an endorsement “Left” and the applicant filed the complaint under Section 138 of the Act before the Court of the Chief Judicial Magistrate, Bharuch.

3.2. The learned Trial Court was pleased to consider the affidavit, documents produced and examination-in-chief of 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 which was duly served but the accused did not appear before the learned Trial Court. On 15.03.2023, the learned advocate for the applicant submitted an application stating that the applicant was before the Hon’ble High Court for his application of anticipatory bail and had also submitted the case status of the case pending before the High Court but the learned Trial Court was pleased to dismiss the complaint under Section 256 o f t h e of the C r . P . C . for want of prosecution on the part of the complainant.

4. Being aggrieved