A complainant's absence does not automatically lead to acquittal if evidence is present; courts must exercise discretion to adjourn rather than dismiss cases.

JUDGMENT :

S.V. PINTO, J.

1. Learned advocate Mr. Jainam Shah has appeared on behalf of the respondent no. 1 and upon instructions seeks permission to file his appearance.

2. The present appeal is filed by the appellant – original complainant under Section 419 (4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “ BNSS ”) against the order passed by the learned Judicial Magistrate First Class (First Court), Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 20033 of 2010 on 14.10.2024, 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. 1 - 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 respondent No. 1 is hereinafter referred to as “the accused” as he 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 applicant and the respondent No.1 were known to each other and the applicant gave an amount of Rs.5,00,000/- as hand loan to the respondent No.1 towards which the respondent No.1 issued cheque No. 239947 dated 21.09.2009 from his account with the HDFC Bank, Surat Branch. The cheque was deposited by the applicant in his account and the said cheque returned unpaid with the endorsement “Account Closed”. The demand statutory notice was given, which was refused by the respondent No.1 and the amount was not paid within stipulated time, and hence, the applicant filed the complaint under Section 138 of N.I.Act before the Court of the Chief Judicial Magistrate, Surat, which came to the registered as Criminal Case No.20033 of 2010.

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 to accused but he did not appear, and bailable and non-bailable warrants were issued but the same could not be served. The appellant had filed the affidavit of examination in chief and the matter was pending for service of warrant and cross examination of the appellant but by an order dated 14.10.2024, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant.

4. Being aggrieved and dissatisfied by the impugned order the appellant has preferred the present Criminal Appeal under Section 419 of BNSS .

5. Heard learned advocate Mr. Prem Dave appearing for the appellant, learned advocate Mr. Jainam Shah for the respondent no. 1 and learned APP Mr. Pranav Dhagat for the respondent – State.

6. Learned advocate Mr. Prem Dave 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.

7. Learned APP Mr. Pranav Dhagat for the respondent – State and learned advocate Mr. Jainam Shah for the respondent No. 1 have jointly submitted that after recording the absence of learned advocate for