Dismissal of a case for non-appearance of the complainant is inappropriate if there is evidence on record; courts must exercise discretion to ensure justice.

ORDER :

1. The present appeal is filed by the appellant – original complainant under Section 419 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short “ BNSS ”) against the order dated 22.10.2024 passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act Court No. 31, Ahmedabad (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 2967 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 and 3 - 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 Nos. 2 and 3 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 appellant had filed a complaint against the accused No. 1 - Friends Communication and the accused No. 2 - Chirag Ashokbhai Sharma under Section 138 of the N.I. Act as accused No. 2, the proprietor of accused No. 1 firm, had taken a friendly loan of Rs. 4,50,000/- in parts from the appellant against which the accused issued a promissory note and cheque No.783942 for Rs.4,10,000/- dated 19.09.2019 of Yes Bank, Shashtrinagar, Naranpura Branch. The appellant deposited the cheque on 19.09.2019 and the cheque was returned unpaid on 20.09.2019 with the endorsement “Payment Stopped by Drawer”. The appellant contacted the accused No. 2 who instructed him to deposit the cheque again. The appellant deposited the cheque again on 09.11.2019 and the cheque returned on 12.11.2019 with the endorsement “Payment Stopped by Drawer”. The appellant gave the demand statutory notice through his advocate on 25.11.2019 which was duly served to the accused on 27.11.2019 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 learned Chief Metropolitan Magistrate, Ahmedabad which came to be registered as Criminal Case No. 2967 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 and the accused appeared before the learned Trial Court and the plea was recorded. The appellant filed the affidavit of examination in chief and the matter was pending for cross examination and was adjourned for evidence. By an order dated 22.10.2024, 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 the BNSS .

4. Heard learned advocate Mr. Bhavik J. Pandya appearing for the appellant and learned APP Ms. C.M. Shah for the respondent – State. Though served the respondent No. 2 and 3 have not appeared either in person or through an advocate.

5. Learned advocate Mr. Bhavik J. Pandya 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 l