An acquittal for non-appearance of the complainant is improper without assessing case merits, particularly if counsel representation exists.

ORAL ORDER

1. The present appeal is filed by the appellant – original complainant under Section 378 (4) of the Code of Criminal Procedure, 1973 (for short “ Cr.P.C .”) against the order dated 25.01.2023 passed by the learned 8^th Additional Chief Judicial Magistrate, Gandhinagar (hereinafter referred to as the “learned trial Court”) in Criminal Case No. 5813 of 2021, whereby the learned trial Court has dismissed the Criminal Case for want of prosecution as the appellant - original complainant did not remain present under the provisions of Section 256 (3) of Cr.P.C . and the respondent No. 1 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”).

2. Heard learned advocate Mr. Akashkumar A. Patel for learned for the appellant, learned advocate Mr. M.A.Parekh for the respondent No. 1 and learned APP Mr. Pranav Dhagat, for the respondent No. 2 – State.

3. Learned advocate for the appellant submits that the appellant had given a loan of Rs. 3,75,000/- to the respondent No. 1 towards which the respondent no. 1 has issued cheque No. “000110” for Rs. 3,75,000/- dated 19.08.2021 from his account with H.D.F.C. Bank. The cheque was deposited by the appellant in his bank, which had returned unpaid with the endorsement "Funds Insufficient". The appellant gave the statutory demand notice on 06.10.2021 which was duly served to the accused on 08.10.2021 but no reply was given and no payment was made hence, the appellant filed the complaint under Section 138 of the NI Act before the Court of Chief Judicial Magistrate, Gandhinagar which was registered as Criminal Case No. 5813 of 2021. The learned Additional Chief Judicial Magistrate, Gandhinagar was pleased to consider the affidavit and documents produced on record by the appellant and took cognizance for the offence under Section 138 of the NI Act and issued summons to the respondent No. 1. The respondent No. 1 was duly served with the summons and appeared before the learned Trial Court and after the plea of the respondent No. 1 was recorded, the matter was pending for cross - examination of the appellant but by an order dated 25.01.2023, the learned 8^th Additional Chief Judicial Magistrate, Gandhinagar was pleased to pass an order under Section 256 of the Code of Criminal Procedure and dismissed the complaint.

4. Learned APP Mr. Pranav Dhagat for the respondent No. 2 - State has submitted that after recording the absence of the appellant and 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.

4.1 Learned advocate Mr. M.A.Parekh for the respondent No. 1 has vehemently objected to the appeal and has submitted that from the Rojkam, it is clear that the appellant was not present before the learned trial Court on number of occasions and hence recording his absence, the learned trial Court has passed the impugned order and hence the appeal must be rejected.

5. 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 256 of Cr.P.C .

which reads as under:-

"256. Non-appearance or death of complainant.—

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some