The dismissal of a complaint under Section 256 for non-appearance is improper if evidence is recorded, emphasizing the need for trial on merits to avoid undue acquittal.

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 Additional Chief Judicial Magistrate, Gondal (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1801 of 2019 dated 16.10.2024, whereby, the learned Trial Court has dismissed the criminal case for want of prosecution as the complainant 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 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 known to each other and the accused was in need of financial assistance to pay the fees of her daughter Daxa Rajabhai Mehta and the complainant had advanced an amount of Rs.1,90,000/- to the accused. The accused executed a notarized promissory note and issued a cheque No.386003 for Rs.1,90,000/- from her account with State of Bank of India, Opposite Janana Hospital, Hospital Chowk, Javahar Road Branch, Rajkot. The complainant deposited the said cheque in his account with Gondal Nagarik Sahakari Bank Limited, Mandavi Chowk, Rakot Branch. However, the said cheque returned unpaid with the endorsement “Exceeds Arrangement”. The complainant sent the demand statutory notice to the accused which was duly served but the accused did not send any reply and did not repay the amount within stipulated period, and hence, the complainant filed a complaint under Section 138 of the N.I.Act, before the Court of the Chief Judicial Magistrate, Gondal, which came to be registered as Criminal Case No. 1801 of 2019.

2.2. The learned Trial Court was pleased to consider the affidavit, documents produced on record and examination-in- chief of the complainant and take cognizance for the offence under Section 138 of the N.I.Act and passed an order to issue summons, which was duly served but the accused did not appear before the learned Trial Court, and hence, a non- bailable warrant was issued. The complainant made innumerable efforts including taking the non-bailable warrant for execution by hand but the accused was successful in avoiding the service, and after innumerable attempts, on 15.03.2023, the accused appeared before the learned Trial Court and gave an application at Exh.18 for taking the matter on board along with an application at Exh.19 for cancellation of the warrant, which was allowed by the learned Trial Court. The vakalatnama of the learned advocate for the accused was taken on record at Exh.20 and the address pursis was submitted at Exh.21. The matter was pending for cross-examination of the complainant and the complainant was present before the learned Trial Court on number of occasions but not cross- examined by the learned advocate for the accused. On 30.09.2023, the complainant gave an application at Exh.24 to close stage of the cross-examination, which was kept for hearing, and thereafter, the accused or the learned advocate for the accused did not appear before the learned Trial Court. The complainant, once again, gave an application for issuing the non-bailable warrant, which was allowed, and o