Absence of the complainant does not automatically necessitate dismissal; Trial Court must consider existing evidence before acquitting under Section 256 of the Cr.P.C.

ORDER :

S.V. PINTO, J.

1. 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 dated 08.11.2024 passed by the learned 12^th Additional Chief Judicial Magistrate, Vadodara (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 11631 of 2020, 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” 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, a finance company, had filed a complaint against the accused under Section 138 of the N I Act as the accused had taken a loan from the appellant for purchasing a vehicle bearing registration number GJ-08- AE-9000 for business purpose and the accused issued cheque No.000205 for due amount of Rs.2,62,400/- dated 24.02.2020 of The Mahesana Urban Co-operative Bank Ltd, Panjarapol, Chansma Branch. The appellant deposited the cheque and the cheque was returned unpaid on 27.02.2020 with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 05.03.2020 which was duly served to the accused 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 learned Chief Judicial Magistrate, Vadodara which came to be registered as Criminal Case No. 11631 of 2020.

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 but he did not appear and a warrant was 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. By an order dated 08.11.2024, 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 419 of BNSS .

4. Heard learned advocate Mr. P. M. Dave appearing for the appellant, learned APP Mr. Pranav Dhagat for the respondent – State and learned advocate Mr. N. P. Chaudhary for the respondent No.2.

5. Learned advocate Mr. P. M. 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.

6. Learned APP Mr. Pranav Dhagat for the respondent – State and learned advocate Mr. N. P. Chaudhary for the respondent No.02 have jointly submitted that after recording the absence of learned advocate for the appellant the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C. a