A trial court must ensure that dismissals for non-appearance do not occur without proper consideration for complainant representation to avoid unjust acquittals.

ORAL ORDER

1. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short “ Cr.P.C .”) against the order dated 26.07.2022 passed by the learned 6^th Additional Chief Judicial Magistrate, Gandhidham - Kutch (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 2837 of 2016, whereby the learned Trial Court has dismissed the criminal case for want of prosecution under the provisions of Section 256 of Code of Criminal Procedure, 1973 (for short “ Cr.P.C .”) and the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act”).

1.1 The respondent No.2 is hereinafter referred to as “the accused” in the rank and file as he stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:

2.1. The appellant had filed a complaint against the accused under Section 138 of the N.I.Act as the accused had taken a loan of Rs.5,00,000/- in parts from the appellant and the accused issued cheque No.658095 for Rs.5,00,000/- dated 20.05.2016 from his account with Vijaya Bank, Gandhidham Branch. The appellant deposited the cheque in his account with Dena Gujarat Gramin Bank, Gandhidham Branch, and the cheque was returned unpaid with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate which was duly served to the accused, but the accused did not repay the amount within the stipulated time, and hence, the appellant filed the complaint under Section 138 of the N.I.Act before the Court of Additional Chief Judicial Magistrate, Gandhidham – Kutch, which came to be registered as Criminal Case No. 2837 of 2016.

2.2. The learned Trial Court was pleased to consider the affidavit, documents produced and examination in chief of the appellant and take cognizance for the offence under Section 138 of the N.I.Act and passed an order to issue summons to the accused but the accused was avoiding service and could not be served with the summons. The appellant made efforts to get the summons served by the summons were not served as the accused was residing at Rajasthan and by an order dated 26.07.2022, the learned Trial Court was pleased to dismiss the complaint for want of prosecution.

3. Being aggrieved and dissatisfied by the impugned order, the appellant has preferred present Criminal Appeal under Section 378 Cr.P.C .

4. Heard learned advocate Mr.Pundreek B. Odedara for learned advocate Mr. Kishan Prajapati appearing for the appellant, learned APP Mr. Pranav Dhagat for the respondent no. 1 – State and learned advocate Mr. Arvind Thakur for the respondent no.2

5. Learned advocate Mr.Pundreek B. Odedara for the appellant has submitted that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore the impugned order is unsustainable and bad in law, and hence, the same may be quashed and set aside.

6. Learned APP Mr. Pranav Dhagat for the respondent – State and learned advocate Mr. Arvind Thakur for the respondent No. 2 have jointly submitted that after recording the absence of learned advocate for the appellant the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C . and hence, this Court may not interfere with the impugned order and has urged this Court to dismiss the present appeal.

7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C . it is appropriate to have a glance of Section