Dismissal under Section 256 Cr.P.C. requires due consideration of evidence on record, and non-appearance of the complainant should not automatically result in acquittal.

ORDER :

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 (for short “Cr.P.C.”) against the order dated 19.10.2024 passed by the learned 2^nd Additional Chief Judicial Magistrate, Gandhidham (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 418 of 2019, 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 Nos. 2 to 4 - 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 appellant is referred to as the complainant and the respondent Nos. 2 to 4 are hereinafter referred to as “the accused” in the rank and file 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 is a propriety concern doing business in the name and style of ‘M/s Shree Shyamji Trading Company’ at Gandhidham Kachchh and is trading in electronic, electrical and other ancillary goods. The accused no.1 is a partnership firm and the accused nos.2 and 3 are the partners of the firm doing its business in the name and style of ‘M/s Sarvoday Enterprise’ now known as ‘M/s Usha Agency’ at Gandhidham Kachchh the accused firm had purchased electronic, electrical and other ancillary goods from the complainant and an amount of Rs.20,92,000/- was outstanding from the accused firm, towards which, cheque No.825442 dated 16.08.2019 for an amount of Rs.20,92,000/- was issued from their account with Dena Bank, Gandhidham Branch. The appellant deposited the cheque in his account with HDFC Bank Ltd., Gandhidham Branch and the cheque was returned unpaid with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 28.09.2019, which was duly served to the accused on 03.10.2019 and the accused sent evasive reply 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 Additional Chief Judicial Magistrate, Gandhidham which came to be registered as Criminal Case No. 4138 of 2019.

2.2. The learned 4^th Additional Chief Judicial Magistrate, Gandhidham was pleased to consider the affidavit and documents 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 served to the accused and the accused appeared before the learned Trial Court. The pleas of the accusd was recorded at Exhs. 31 to 33 on 23.09.2023 and the matter was pending for evidence of the complainant. By the impugned judgment and order, 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 Mr. Vishal K. Anandjiwala appearing for the appellant, learned APP Mr. Pranav Dhagat for the respondent – State and learned Senior Advocate Mr. Tejas Barot for learned advocate Ms. Rhea Choksi for the respondent nos.2 to 4.

5. Learned advocate Mr. Vishal K. Anandjiwala 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 Mr. Pranav Dhagat for the respondent – State and learned Senior Advocate Mr. Tejas Barot for learned advoca