ORAL ORDER

1. By way of present application, the applicant has filed the application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 ( for short “ the Cr.P.C.) challenging the judgment and order passed by the learned 12^th Additional Sessions Judge, Rajkot on 30^th September, 2023 in Criminal Appeal No. 12 of 2022.

2. The brief facts leading to filing of this revision application are as under:-

2.1 That the applicant-original complainant filed Criminal Case No.14443 of 2018 in the Court of learned Chief Judicial Magistrate, Rajkot on 30^th November, 2018 against the the respondent No.2-original accused under Section 138 of the Negotiable Instrument Act, 1881. The summons were duly served to the respondent No.2-original accused and he appeared through is advocate and the plea of the respondent No. 2 was recorded at Exh; 8. That the applicant being the original complainant led the evidence but thereafter, the respondent No. 2 or his advocate did not remain present and the learned 5^th Additional Chief Judicial Magistrate, Rajkot closed the stage of cross examination as also the stage of further statement and arguments and by an order dated 16^th October, 2021 was pleased to convict the respondent No.2-original accused to simple imprisonment of one year and also ordered the respondent No. 2 to pay an amount of Rs.5,00,000/- as compensation to the applicant within a period of 60 days and to simple imprisonment of six months if the amount was not paid.

2.2 Being aggrieved and dissatisfied with the said judgment and order, the respondent No. 2 filed Criminal Appeal No. 12 of 2022 before the 12^th Additional Session Judge, Rajkot and after hearing the learned advocates for both the parties, the learned 12^th Additional Sessions Judge, Rajkot was pleased to set aside the judgment and order of conviction and remanded the case back to the learned trial Court with the direction that the respondent No. 2 be given an opportunity of cross examining the complainant, recording the further statement of respondent No. 2 and after hearing on merits to decide the case.

3. Being aggrieved and dissatisfied with the said order of remand, the applicant has filed the present revision application, mainly stating that the respondent No.2 has deliberately avoided the proceedings and even though sufficient opportunity was given, he has not remained present either in person or through his advocate before the learned trial Court and hence he cannot contend that no opportunity was given. That the learned 12^th Additional Sessions Judge, Rajkot has erred in arriving at the findings that the procedure under Section 82 and Section 83 of the Cr.P.C was not undertaken by the learned trial Court as the respondent No. 2-original accused was duly served with the summons and he was appearing through his advocate . That the applicant-original complainant has proved the entire case in the learned trial Court and the order of remand passed by the learned 12^th Additional Sessions Judge is erroneous and illegal and hence the same must be set aside.

3.1 Learned advocate for the applicant has relied upon the judgment delivered by the Hon’ble Apex Court in the case Manoj Sompura vs. State of Gujarat, reported in 2023 (0) AIJEL SC

247313.

4. Heard learned advocate Mr. H.J.Karathiya for applicant and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the State.

5. Learned advocate Mr. Karathiya for the applicant has reiterated the contents of the revision application and has further submitted that the judgment and order of conviction of the learned 5^th Additional Chief Judicial Magistrate was not required to be reversed or set aside as the same was after considering all evidence on record. That the learned 12^th Additional Session Judge, has clearly erred in concluding that there are procedural lapse in the judgment of the learned trial Court and it is clear that a number of opportunities were given to the respondent No.2 but he deliberately chose not t