ORAL JUDGMENT

Order in Criminal Misc. Application:

1. This is an application by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal, passed by the learned Judicial Magistrate First Class, Malpur, Dist; Arvalli dated 04.10.2021 in Criminal Case No. 247 of 2019.

2. Heard, learned advocate Mr. Dharmesh R. Patel for the applicant, Mr. Bhavesh J. Patel for the respondent No.1 and learned APP Mr. R. C. Kodekar for respondent - State and perused the impugned judgment and order of the trial Court.

3. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, leave, as prayed for, is granted. This application is allowed. Rule is made absolute accordingly.

Order in Criminal Appeal:

1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent – State. Learned advocate Mr. Bhavesh J. Patel waives service of notice of admission on behalf of respondent – original accused.

2. The present appeal is filed under Section 378 of the Code of Criminal Procedure challenging the order of acquittal passed by the learned Judicial Magistrate First Class, Malpur in Criminal Case No.247 of 2019, whereby the trial Court has dismissed the complaint under Section 256(1) of the Code of Criminal Procedure filed under Section 138 of the Negotiable Instruments Act.

3. The short facts giving rise to the present appeal are that the appellant has advanced Rs.2,20,000/- to the respondent no.1 accused, which has not been returned back by the respondent No.1 – accused. The appellant has deposited a cheque given by the respondent No.1 – accused in the bank which has been returned without honored and therefore, present appellant - complainant has filed criminal complaint under the provisions of Negotiable Instrument Act. The appellant has filed Criminal Case No.247 of 2019 before the Judicial Magistrate First Class, Malpur, wherein after verification, summons has been issued to respondent No.1 – accused. The respondent No.1 – accused has appeared through advocate in the criminal case and matter has been adjourned time to time on the one or other reason and also for pandemic. Thereafter, the trial Court has dismissed such Criminal Case No.247 of 2019 by order dated 04.10.2021 under Section 256(1) of the Code of Criminal Procedure as well as acquitted respondent No.1 – accused for the offence punishable under Section 138 of the Negotiable Instrument Act.

4. It is submitted by learned advocate Mr. Dharmendra Patel submitted that impugned order is bad in law. Without going into merits of the case the Court has dismissed the complaint. The trial Court has not considered the evidence of complainant on record and dismissed the complaint. The trial Court has not gone into the merits and applied technical approach and thus has not passed the judicious order. The impugned order is erroneous and contrary to law. As such it is prayed to quash and set aside the impugned order and remand back the matter to the trial Court in the interest of justice.

5. Learned advocate Mr. Bhavesh Patel appearing for respondent has supported the order of the trial Court and has contended that opportunity was granted to the complainant to remain present but complainant has not even taken the Court to proceed with the matter. As such, the trial Court had given an opportunity to the complainant but he has not availed the opportunity and therefore, the trial Court had rightly dismissed the complaint under Section 256 of the Code of Criminal Procedure and acquitted the accused. As such, no interference is required and prayed to dismiss the appeal.

6. Upon hearing the submissions of both the sides and perusing the order of the trial Court, it appears that the trial Court has dismissed the complaint under Section 256(1) of the Code of Criminal Procedure in the eve