The court emphasized the necessity of a complainant's presence in cases governed by Section 256 of the CrPC and the inappropriate dismissal of cases where evidence has already been presented.

ORDER :

S.V. Pinto, J.

1. The present appeal is filed by the appellant – original complainant under Section 419 of Bharatiya Nagarik Surakhsha Sanhita, 2023 against the order dated 23.04.2025 passed by the learned 6^th Additional Chief Judicial Magistrate, Ahmedabad (Rural), Navrangpura (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 14364/2023, 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 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 appellant and the respondent no. 2 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.

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 complainant and the accused were friends and the daughter of the accused was to get married and the accused was in need of some finance and had requested the complainant for an amount of Rs.4,00,000/- which was given as a hand loan. Towards the outstanding amount the accused issued checque No. 009396 dated 28.6.2022 for Rs.2,00,000/- and cheque No. 009397 dated 30.6.2022 for Rs. 2,00,000/- from his account with the Mahila Vikas Coperative Bank Ltd., Bhatta Vasna, Ahmedabad Branch. The cheques were deposited by the complainant in his account with Ahmedabad District Cooperative Bank Limited, Ahmedabad Branch but the cheques returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given, which was duly served to the accused but amount was not being repaid within the stipulated period and hence, the complainant filed a criminal complaint under Section 138 of the Negotiable Instruments Act before the Court of the Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur which came to be registered as per Criminal Case No. 14364 of 2023.

2.2 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. Thereafter, the accused did not appear and his plea could not be recorded but the complainant had filed the affidavit of examination- in-chief at Exh. 4 and had also given an application at Exh.5 for exhibiting the documents which were vide a list at Exh. 3. The application at Exh.5 was kept “fixed for hearing” and during this time, the accused or his learned advocate did not remain present before learned Trial Court and the learned Trial Court was pleased to pass the impugned order below Exh.1 and dismiss the complaint for want of prosecution on the part of the complainant.

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

4. Heard learned advocate Ms. Vidhi Sharma for learned advocate Mr. Tanmay Karia appearing for the complainant, learned advocate Mr. Rakesh Patel for the accused and learned APP Ms. Vrunda Shah for the respondent no. 1 –State.

5. Learned advocate Ms. Vidhi Sharma for the complainant has submitted that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective