A trial court's dismissal of a case for non-appearance of the complainant is improper if prior testimony has been recorded and an advocate is representing the complainant.

JUDGMENT :

S.V. PINTO, J.

1. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 against the order dated 24.07.2024 passed by the learned 24^th Additional Chief Judicial Magistrate, Ahmedabad City (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 119 of 2016, 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 Code of Criminal Procedure, 1973 (for short “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”).

1.1 The parties 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.

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 complainant - a finance company, had filed a complaint against the accused under Section 138 of the N I Act as the accused had taken a term loan of Rs. 83,33,333/- from the complainant and the accused issued cheque No.000205 for the due amount of Rs. 72,30,364/- dated 19.02.2016 from his account with The Mahesana Urban Co-operative Bank Ltd, C.G. Road, Ahmedabad Branch. The complainant deposited the said cheque and the cheque returned unpaid with the endorsement “Exceeds Arrangement”. The complainant gave the demand statutory notice through his advocate on 14.03.2016 which was duly served to the accused but the accused did not repay the amount and hence, the complainant filed the complaint under Section 138 of the N I Act before the Court of the Chief Metropolitan Magistrate, Ahmedabad which came to be registered as Criminal Case No. 2900119 of 2016.

2.2 The learned Trial Court was pleased to consider the affidavit and documents produced 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. During the pendency of the trial as the representative who had filed the case on behalf of the company expired, an application for substitution of the complainant was given and the same was allowed by the learned Trial Court by an order dated 16.11.2022. The appellant filed an application on 22.02.2023 seeking time to file the affidavit of examination-in-chief and the learned Trial Court was pleased to allow the said application with a cost of Rs.15,000/- to be paid in the Metro Legal Service Committee, Gheekanta, Ahmedabad. The appellant challenged the order of imposing cost of Rs.15,000/- by the learned Trial Court order before the City Sessions Court, Ahmedabad by filing Criminal Revision Application No.194 of 2023. During pendency of the said revision application, the appellant filed an application on 24.07.2024 before the learned Trial Court stating that he was ready and willing to deposit the amount of cost but by the impugned order, the 24^th Additional Chief Judicial Magistrate, N.I.Act, Court No. 31, Ahmedabad was pleased to pass the order below Exh.1 dismissing the criminal case under Section 256 of the Cr.P.C. for want of prosecution on the part of the complainant.

3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378 (4) of Code of Criminal Procedure, 1973.

4. Heard learned advocate Mr. Tirth Nayak appearing for the appellant, learned APP Ms. C.M. Shah for the respondent – State and learned adv