ORAL JUDGMENT

1. The present appeal under Section 378(4) of the Code of Criminal Procedure 1973 is preferred against the judgment and order of acquittal dated 12.03.2022 passed by the learned Additional Chief Judicial Magistrate, Idar in Criminal Case No.935 of 2011, whereby the learned trial Court Judge acquitted the accused-

respondent No.2 herein.

2. Advocate Mr.Punam Gadhvi and Ms.K.D.Patel, learned advocate for the respondent no.2 – Prafulbhai Nandlal Tilavat, who is accused in Criminal Case No.935 of 2011 filed under Section 138 of the N.I.Act before the Additional Chief Judicial Magistrate, Idar.

3. On verification, by way of order dated

27.04.2011, the case was registered and the summons was issued against the accused, making it returnable on 27.06.2011. As per the Rojnama, vide Exhibit-4, prayer was made for issuance of summons by way of Registered Post- A.D. Exhibit-5 is Vakaltnama on behalf of the accused filed on 04.08.2011. Exhibit-7 is the list of documentary evidence of the complainant. The matter was posted on 15.02.2012, where accused advocate filed an adjournment application and vide Exhibit-10, the statement of the accused was recorded on 20.06.2011. The record and proceedings shows that vide Exhibit-16, on 10.10.2012, the application to produce the documentary list was granted, vide Mark 17/1 to 17/11, the documents were produced, and on the very same day vide Exhibit-18, the evidence of the complainant was recorded.

3.1 After frequent adjournment on applications from both the sides, the proceedings could progress on 20.09.2013 from the side of the complainant by producing documents vide Mark 36/1 to 36/30. Exhibit-37 is the Affidavit-in-Chief of the Complainant and thereafter the matter was adjourned thrice and on 20.11.2013, the documents produced by the complainant were ordered to be exhibited. The record reflects that the documents were put in evidence from Exhibit-44 to Exhibit-83, and thereafter on the next adjournment i.e. on 18.12.2013, the Court was on leave while the parties were also not present. On 29.01.2014, adjournment was sought for from the side of the accused and the matter was posted for further cross-examination. On 14.12.2014, since the accused was not present before the Court, an application, Exhibit-85, was moved by the complainant for issuance of warrant.

3.2 The proceedings shows that from the date i.e.

20.03.2014, 16.04.2014, 12.05.2014, 17.06.2014, though the warrant was in force, accused did not appear and on 24.07.2014, vide Exhibit-86, again an application was moved for issuance of bailable warrant against the accused and the warrant remained unserved. Thereafter, after about seven adjournments, since proceedings stood transferred to another Court of Additional Chief Judicial Magistrate, and on 27.03.2015, Notice was issued to the complainant. On

10.04.2015, adjournment was sought by the complainant’s advocate and thereafter matter continued to be adjourned for the service of warrant to the accused through police and thereafter on 24.06.2017 there was an order of issuance of warrant through DSP Jamnagar. On 28.12.2018, the Additional Chief Judicial Magistrate, First Class, Idar, passed an order to place the matter on dormant file in accordance to para-211 of the Criminal Mannual with further order of issuance of process quarterly against the accused. Ultimately by order dated 12.03.2022, the matter was dismissed under Section 256 of the Criminal Procedure Code observing that the matter has remained pending for a long period as the applicant has remained negligent in proceeding with the matter; thus, in the special sitting, the case was ordered to be dismissed by default observing as of the carelessness, negligence and continuous absence of the complainant.

4. Mr.Maulin Pandya, learned advocate for the appellant submitted that the whole proceedings shows that, initially the accused remained present; he was represented by an advocate when the documents and the evidence-in-chief were re