The court held dismissal of a criminal complaint for absence of the complainant is improper if evidence exists and representation is made, emphasizing the necessity for discretion 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 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the order dated 19.11.2022 passed by the learned Judicial Magistrate, First Class, Shihori (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 732 of 2016, 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 had filed a criminal complaint against the accused under Section 138 of the N.I.Act as the accused had taken a loan of Rs.4,60,000/- from the appellant against, which the accused issued cheque No.361101 for Rs.4,60,000/- dated 07.07.2014 from his account with Corporation Bank, Patan Branch. The appellant deposited the cheque on 10.07.2014 and the cheque was returned unpaid on 14.07.2014. The appellant gave the demand statutory notice through his advocate on 04.08.2014 which was duly served to the accused on 09.08.2014 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 Judicial Magistrate, Shihori.

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 but the accused did not appear before the learned Trial Court. A warrant came to be issued to the accused, which was not served and thereafter, the appellant prefered applications for issuance of warrants to be served through concerned police station by personally taking the warrant to be handed over to the police station. The matter was pending for service of warrants and by an order dated 19.11.2022, 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 judgment and order passed by the learned Trial Court dismissing the criminal case of the present appellant – complainant for want of prosecution, the appellant has preferred present criminal appeal.

4. Heard learned advocate Mr.Hitesh Pandya for learned advocate Mr.Himanshu Padhya appearing for the appellant and learned APP Ms.C.M.Shah for the respondent – State. Though served, the respondent No. 2 has not appeared either in person or through an advocate.

5. Learned advocate Hitesh Pandya for learned advocate Mr.Himanshu Padhya 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 appellant and the learned advocate for the appellant made all efforts to get the warrants served and the evidence was on record but without considering the same, the impugned order came to be passed and hence, the same may be quashed and set aside.

6. Learned APP Ms.