Acquittal based solely on the complainant's absence is impermissible if evidence exists; courts must consider the merits of the case before dismissing for non-appearance.

ORDER :

S.V. Pinto, J.

1. The present appeal is filed by the appellant – original complainant under Section 419 of the Bhartiya Nagarik Surakasha Sanhita, 2023 (for short “ BNSS ”) against the order dated 29.08.2023 passed by the learned Judicial Magistrate, First Class, Kalyanpur, District Devbhoomi Dwarka (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 204 of 2008, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution as the appellant did not remain present 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”).

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 - original complainant and the respondent No. 2 – accused were friends and the appellant had Poclain Machine, which was given to the respondent No.2 for earthwork in village Mothada, Taluka Abdasa, District Bhuj on monthly rent of Rs.2,50,000/-. Towards the outstanding amount of Rs.1,60,000/-, the respondent No.2 issued cheque No.015509 dated 03.01.2018 for an amount of Rs.1,60,000/- from his account with Central Bank of India, N.R.I, Branch, Bhuj. The appellant deposited the cheque on 19.02.2018 in his account with State Bank of India, Bhatiya Branch and the cheque was returned unpaid on 22.02.2018 with endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate, which was duly served but the respondent no. 2 did not repay the amount, and hence, the appellant filed the complaint under Section 138 of the N.I.Act before the Court of Judicial Magistrate, First Class, Kalyanpur, which was registered as Criminal Case No.204 of 2018.

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 respondent No. 2 and the respondent No. 2 was successful in avoiding the service of summons and on innumerable dates, the summons were issued but the respondent No. 2 was successful in avoiding the service of summons and by the impugned order, the learned Trial Court was pleased to dismiss the complaint of the appellant.

3. Heard learned advocate Mr.Nisarg Shah for learned advocate Mr.Anil H. Patel appearing for the appellant and learned APP Mr.Pranav Dhagat for the respondent – State. Though served, the respondent No. 2 has not appeared either in person or through an advocate.

4. Learned advocate Mr.Nisarg Shah 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.

5. Learned APP Mr.Pranav Dhagat for the respondent – State has 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., and hence, this Court may not interfere with the impugned order and has urged this Court to dismiss the present appeal.

6. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr