ORAL ORDER

1. The present appeal is filed by the appellant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the order dated 11.02.2023 passed by the learned Chief Judicial Magistrate, Nadiad (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 7663 of 2013, 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(3) of 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 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 and the accused were friends and the accused was in the business of arranging tour and the appellant contacted the accused for Umrah and gave an amount of Rs.2,55,000/- for five person as per receipt No.812 and an agreement was executed between the parties and the same was cancelled on 10.10.2013. The accused issued a cheque for Rs.2,55,000/- which was deposited by the appellant the cheque in his bank and the cheque was dishonored. The complainant sent the statutory demand notice to the accused on 31.10.2013 which was duly served against which no reply was given and no payment was made and hence the appellant filed a criminal complaint before the Court of the Chief Judicial Magistrate, Nadiad under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 7663 of 2013.

2.2 The learned Chief Judicial Magistrate, Nadiad was pleased to consider the affidavit, documents produced vide a list and take cognizance for the offence under Section 138 of the N I Act and passed an order to issue summons to the accused. The accused successfully evaded the service of summons and a number of application were filed and orders were passed and the appellant gave applications for re-issuane of warrant on 07.09.2022 and order was passed for issuance of bailable warrent. The accused did not appear before the learned Trial Court and the matter was pending for service of summons/warrant and by an order dated 11.02.2023, the learned Chief Judicial Magistrate, Nadiad was pleased to dismiss the complaint for want of prosecution on the part of the appellant.

3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378(4) of Criminal Procedure Code.

4. Heard learned advocate Mr. Amir S Pathan appearing for the appellant and learned APP Ms. Jirga Jhaveri for the respondent No. 1 – State. Though served by substituted service the respondent No. 2 has not appeared either in person or through an advocate.

5. Learned advocate Mr. Amir S Pathan 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 judgment is unsustainable and bad in law. Learned advocate further submits that due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned order and therefore, the same may be quashed and set aside.

6. Learned APP Ms. Jirga Jhaveri for the respondent -State has submitted that after recording the absence of learned advocate for the appellant the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C. and hence, this Court may not interfere with the impugned order and have urged this Court to dismiss the present appeal.

7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C.

which reads as under:-

"256. Non-appearance or death of complaina