ORAL JUDGMENT

1.This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the judgment and order of acquittal dated 27.02.2023 passed by the learned Presiding Officer Special N.I.Act Court, Rajkot in Criminal Case No.10103 of 2018, whereby the learned trial Court has exercised the power under Section 256 of the Cr.P.C. and dismissed the complaint and acquitted the respondent-accused from the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ hereinafter).

2.It is the case of the complainant that the complainant and the respondent-accused were friends and for the development of the business, the complainant lent the amount of Rs.4 Lakh through RTGS to the respondent- accused on 04.03.2017. On repeated demand, the cheque bearing No.019671 of Rs.4 Lakh was issued dated 10.04.2018. On depositing the cheque with the Bank, it was returned with an endorsement ‘fund insufficient’ and therefore, after following the due procedure under the N.I.Act, a private complaint came to be filed.

2.1.Learned trial Court after recording the verification issued the summons to the respondent-accused vide order dated 10.08.2018, making it returnable on 08.01.2019. Thereafter, the matter was adjourned time to time and respondent- accused appeared and his plea was recorded below Exhibit 7 on 04.07.2019 and on that day the application below Exhibit 8 was filed by the complainant praying to deposit 20% amount of the cheque with the learned trial Court. The said application remained pending till the impugned judgment and order of acquittal was passed i.e. on 27.02.2023 and the learned trial Court dismissed the complaint on the ground that the complainant, after recording the verification never remained present before the learned trial Court and therefore, power under Section 256 of the Cr.P.C. was exercised, which is the subject matter of the challenge before this Court.

3.Heard the learned advocate Mr.Alok Thakkar for the appellant and learned advocate Mr.Jignesh Hajare for the respondent-accused.

4.Learned advocate Mr.Alok Thakkar for the appellant submits that his son was suffering from multiple mental diseases and his brain is not functioning properly from his birth and therefore, he filed an application before this Court praying to transfer the Criminal Case from the learned trial Court, Rajkot to the learned trial Court, Gandhinagar. The said application was pending before this Court and the respondent-accused appeared through his pleader, however, the respondent- accused did not bring this fact to the notice of the learned trial Court and in turn learned trial Court has passed the judgment and order of acquittal.

4.1.Learned advocate Mr.Thakkar submits that not only the appellant, but also the respondent-accused did not appear on various occasions therefore, it cannot be said that trial could not be proceeded because of absence of the complainant only.

4.2.Learned advocate Mr.Thakkar submits that the amount which was transferred was through the RTGS and the promissory note was also executed by the respondent- accused, however, because of the dismissal of the complaint, the appellant was left remediless and therefore, he prayed to quash the impugned judgment and order of acquittal, which was passed on technical ground and prayed to restore the criminal case to its original file.

5.On the other hand learned advocate Mr.Jignesh Hajare has vehemently opposed this appeal and submitted that after filing the application below Exhibit 8, the complainant prays to deposit 20% of the cheque amount, but thereafter complainant never bothered to remain present before the learned trial Court.

5.1.Learned advocate Mr.Hajare submits that after recording the plea, the case was adjourned for the cross examination of the complainant and because of the absence of the complainant, trial could not be proceeded further and therefore, the learned trial Court has rightly