ORAL ORDER

1. Learned advocate Mr.Parthiv Bhatt has placed on record the affidavit of direct service which is filed by the applicant on 24.06.2024. However, the Registry has not updated the status from 24.06.2024 onwards and it is showing that direct service affidavit is not filed.

2. Registry is directed to examine the same and update the status.

3. This application is filed seeking leave to prefer an appeal challenging the judgment and order of acquittal passed by learned Additional Chief Judicial Magistrate, Halol in Criminal Case No. 3155 of 2019 dated 26.09.2022 dismissing the complaint for non-prosecution by exercising the power under section 256 of Cr.P.C. though in the impugned order date is stated by mistake as 26.09.2012.

4. It is the case of the complainant that complainant and accused were friends and the complainant has decided to sell his vehicle being TATA 1616 having registration no.GJ 02 Z 6425 to Imrankhan Jabbarkhan Pathan for sale consideration of Rs.6,20,000/-. The part payment of the aforesaid consideration is paid and as there was a loan from Shriram Finance, said Imrankhan Pathan has accepted liability of making payment of installments. The sale deed was executed on 28.06.2019 before the notary wherein, the respondent-accused had signed as a witness. Thereafter, for payment of remaining amount of sale consideration, respondent-accused had issued two cheques in favour of complainant bearing cheque nos. 043192 and 043193 for the amount of Rs.2,50,000/- each. On depositing the said cheque, it was returned with an endorsement of ‘drawer’s signature differs’ and therefore, impugned complaint came to be filed before the learned trial court.

5. On recording the verification the summons came to be issued by the learned trial court vide order dated 17.10.2019 making it returnable on 20.11.2019. thereafter, matter was adjourned due to absence of the complainant as well as of respondent-accused. Ultimately, the learned trial court has dismissed the complaint for non-prosecution which is subject matter of challenge before this Court.

6. Heard learned advocate Mr.Parthiv Bhatt for the applicant-original complainant.

6.1. Learned advocate Mr.Parthiv Bhatt submits that on filing the complaint learned advocate has informed that unless and until he would be called the presence would not be required. Learned advocate Mr.Parthiv Bhatt submits that complainant was under bonafide impression that as complaint is filed and the learned advocate is appearing on his behalf, he would be available as and when the learned advocate would be called, however, neither learned advocate appeared nor complainant was informed to remain present and the complaint is dismissed. Learned advocate Mr.Parthiv Bhatt submits that due to dismissal of the complaint his fair case was suffered and therefore, leave as prayed for is required to be granted.

7. Considering the submissions made by the learned advocate Mr.Parthiv Bhatt and perusing the record and proceedings, it transpires that the verification of complainant was recorded by the learned trial court on 27.10.2019 and summons came to be issued making it returnable on 20.11.2019. Entry of the rojkam reveals that thereafter neither learned advocate for the complainant has bothered to appear before learned trial court nor complainant remained present and matter was posted on various dates due to absence of the complainant and his advocate and due to service of summons to the respondent-accused. It appears that the contention of the learned advocate for the applicant that he was informed by the concerned advocate that as and when his presence would be required he would be called if tested then on filing the criminal prosecution before the competent court which is pending for three years, on none of the occasion complainant had tried to inquire from the concerned trial court, in addition to that, now dates are available on the status which is uploaded regularly in the website of the learned trial court