Trial courts should not automatically acquit accused based on the complainant's absence, especially when evidence has been presented, as the right to a fair trial requires proper consideration of circumstances.

ORDER :

S.V. Pinto, J.

When the matter is called out, learned advocate Mr. Nikhil Vyas appearing for the respondent No. 1 is not present.

1. 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 dated 17.08.2023 passed by the learned 9th Additional Judicial Magistrate First Class, Vadodara (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 36631 of 2021, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution 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”).

1.1 The respondent No. 1 is hereinafter referred to as “the accused” in the rank and file 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 had filed a complaint against the accused under Section 138 of the N.I.Act as the accused had taken a loan of Rs.15,00,000/- from the appellant and the accused issued cheque No.070712 for Rs.15,00,000/- dated 28.06.2021 from his account with Axis Bank, Narol, Ahmedabad Branch. The appellant deposited the cheque in his bank account and the cheque was returned unpaid on 07.08.2021 with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 21.09.2021 which was duly served to the accused on 24.09.2021 by RPAD but the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the N I Act before the Court of Chief Judicial Magistrate, Vadodara which came to be registered as Criminal Case No. 36631 of 2021.

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. The appellant had filed his affidavit of examination-in-chief at Exh.4 and also filed an application at Exh. 5 to exhibit the documents, which were produced at Exh. 3. The summons were duly served to the accused but the accused did not appear before the learned trial Court and bailable warrants were issued to the accused. Learned advocate for the appellant had preferred applications at Exh.11 and Exh.12 to take the cover of bailable warrants by hand to get it served to the accused but the bailable warrants could not be served and by the impugned order dated 17.08.2023, 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 Cr.P.C.

4. Heard learned advocate Ms. Vaidehi M. Parikh appearing for the appellant and learned APP Mr. Pranav Dhagat for the respondent No.2– State. Though served, the respondent No. 1 has not appeared either in person or though an advocate.

5. Learned advocate Ms. Vaidehi M. Parikh 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 th