A trial court's dismissal of a case for non-appearance must consider the presence of evidence, and acquittals should not be issued simply due to complainant absence when represented by counsel.

JUDGMENT :

S.V. PINTO, J.

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 passed by the learned 17th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 6606 of 2016 dated 25.02.2022, 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 and the respondent no. 2 were known to each other and the respondent no. 2 was in need of some finance and demanded an amount of Rs.14,00,000/- from the appellant. The appellant had given the amount of Rs.14,00,000/- as a hand loan and the amount was to be returned within a period of three to four months. When the amount was demanded, the respondent no.2 gave cheque nos. 000028 and 000029 both dated 03.04.2015 for Rs. 4,00,000/- each from his account with HDFC Bank, Chikhli – Bilimora Branch. The cheques were deposited by the appellant in his account with Central Bank of India, Ghod Dod Road Branch, Surat, but the cheques returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given and even though the notice was served, the respondent no. 2 did not repay the amount within the stipulated period, and hence, the appellant filed criminal complaint under Section 138 of the NI Act before the Court of Additional Chief Judicial Magistrate, Surat which came to be registered as Criminal Case No. 6066/2016.

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 plea was recorded and the matter was pending for cross examination and adjourned for evidence. By an order dated 25.02.2022, 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 the appellant has preferred present Criminal Appeal under Section 419 of the BNSS .

4. Heard learned advocate Mr. Aniruddh Suchak for leanred advocate Mr. Raajen Jadav 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 Mr. Aniruddh Suchak 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 matter was pending for recording of the further statement of the respondent no.2 and the entire evidence of the appellant was on record, the learned Trial Court did not consider the same and passed the impugned order and hence, the same may be quashed and set aside.

6. Learned APP Ms.C.M.Shah for the respondent - State has submitted that after reco