The trial court erred in dismissing a complaint for want of prosecution despite existing recorded evidence, violating procedural safeguards for the complainant's presence and representation.

JUDGMENT :

S.V. PINTO, J.

1. The present appeal is filed by the appellant – original complainant under Section 378 of Code of Criminal Procedure, 1973 against the order dated 05.10.2023 passed by the learned 5^th Additional Judicial Magistrate First Class, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 18418 of 2022, 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 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 appeal as well as the record and proceedings are as under:

2.1 The appellant is the proprietor of Hari Om Textiles and the accused is the proprietor of Vedant Fab and they both were into the business of fancy sarees and dress materials. From March 2018 to June 2018, the accused had purchased Sarees from the appellant and an amount of Rs.11,05,290/- was outstanding towards which the accused gave cheque No. 001521 dated 30/08/2021 from his account with Kotak Mahindra Bank Limited, Vrajbhumi Apartment Branch, Surat. The appellant deposited the said cheque in his account with Nutan Nagarik Sahakari Bank Limited, Ring Road, Surat Branch and the cheque returned unpaid with the endorsement “ Drawer Signature Differs”. The demand notice was given to the accused on 29/09/2021 which was duly served but the accused did not repay the amount and hence, the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Court of the Chief Judicial Magistrate, Surat which came to be registered as Criminal Case No. 18418 of 2022.

2.2 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 to accused and the accused appeared before the learned Trial Court and his plea was recorded. The appellant had filed the affidavit of examination in chief and the matter was pending for cross examination of the appellant. By an order dated 05.10.2023, the learned Trial Court was pleased to dismiss the complaint 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 of Code of Criminal Procedure, 1973.

4. Heard learned advocate Mr. Jignesh J. Jani appearing for the appellant, learned advocate Mr. Jigar Patel for the respondent no. 2 and learned APP Ms. C.M. Shah for the respondent – State.

5. Learned advocate Mr. Jignesh J. Jani for the appellant has submitted that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore, the impugned order is unsustainable and bad in law. Learned advocate further submits that the learned Trial Court has not appreciated the evidence on record and has passed the impugned order and hence, the same may be quashed and set aside.

6. Learned APP Ms. C.M. Shah for the respondent – State and earned advocate Mr. Jigar Patel for the respondent no. 2 have jointly submitted that after recording the absence of learned advocate for the appellant, the learned Trial C