Absence of complainant does not automatically lead to dismissal of charges when evidence is on record, as per Section 256 of Cr.P.C.

ORDER :

1. When the matter is called out, learned advocate Mr. Dipesh Soni for the accused is not present.

2. The present appeal is filed by the appellant – original complainant under Section 419 of Bharatiya Nagarik Surakhsha Sanhita, 2023 against the order dated 14.05.2025 passed by the learned 15^th Additional Judicial Magistrate First Class, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case no. 86336/2023, 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 accused-original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”).

2.1 The appellant and the respondent no. 1 are hereinafter referred to as the “complainant” and the “accused” as they stood in the original case for the sake of convenience, clarity and brevity.

3. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:

3.1 The complainant and the accused were known to each other and were good friends. The accused wanted a hand loan for his personal expenses and the complainant had given an amount of Rs.6,30,000/- in parts to the accused. The accused had executed a notarized undertaking on 01.03.2022 and had issued cheque no. 000010 dated 07.07.2023 for Rs.6,30,000/- from his account with The Kalupur Cooperative Bank Limited, Adajan, Surat Branch. The cheque was deposited by the complainant in his account with Bank of Baroda, Bhestan Branch, Surat but the cheque returned unpaid with the endorsement “Funds Insufficient”. The complainant gave the demand statutory notice which was duly served to the accused but the accused did not send any reply and did not repay the amount within the stipulated period and hence, the complainant filed a criminal complaint under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Surat which was registered as Criminal Case no. 86336 of 2023.

3.2 The learned Trial Court was pleased to take cognizance for the offence under Section 138 of the NI Act and passed an order to issue summons to the accused which was duly served to accused and the accused appeared before the learned Trial Court and his plea was recorded at Exh. 7. The complainant had filed the affidavit of examination in chief and other documents and the matter was pending for cross examination of the complainant. By an order dated 14.05.2025, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant.

4. Being aggrieved and dissatisfied by the impugned order the complainant has preferred present Criminal Appeal under Section 419 of Bharatiya Nagarik Surakhsha Sanhita, 2023.

5. Heard learned advocate Mr. Rafik Lokhandwala appearing for the complainant and learned APP Mr. Aditya Jadeja for the respondent – State. Learned advocate Mr. Dipesh Soni is not present before this Court to make any submissions.

6. Learned advocate Mr. Rafik Lokhandwala for the complainant 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 no. appreciated the evidence on record and has passed the impugned order and hence, the same may be quashed and set aside and the appeal be allowed.

7. Learned APP Mr. Aditya Jadeja for the respondent-State has submitted that a