The dismissal of complaints due to absence should not occur when evidence is on record, emphasizing the need for judicial discretion.

ORAL ORDER

1. The present appeal is filed by the appellant – original complainant under Section 419 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) against the order dated 06.12.2024 passed by the learned 2^nd Additional Judicial Magistrate First Class, Narmada at Rajpipla (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 2753 of 2021, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution as the appellant did not remain present 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” 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 friendly loan of Rs.9,37,000/- in parts from the appellant against which the accused issued a cheque No.000051 for Rs.9,37,000/- dated 07.10.2021 of Bank of Baroda, Vadiya Palace, Rajpipla Branch. The appellant deposited the cheque in his account and the cheque returned with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 20.10.2021 which was duly served to the accused on 21.10.2021 by RPAD but the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the N I Act before the learned Judicial Magistrate First Class, Narmada at Rajpipla.

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. The accused appeared before the learned Trial Court and the plea was recorded and the matter was pending for cross examination and adjourned for evidence. By an order dated 06.12.2024, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant.

3. Being aggrieved and dissatisfied by the impugned judgment and order the appellant has preferred present Criminal Appeal under Section

419 of the BNSS.

4. Heard learned advocate Mr. Kishan Prajapati appearing for the appellant and learned APP Ms. Chetna Shah for the respondent – State and Mr. Mohd. Shahrukh Saiyed for the respondent No. 2.

5. Learned advocate Mr. Kishan Prajapati 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. Learned advocate further submits that due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned order and therefore, the same may be quashed and set aside.

6. Learned APP Ms. Chetna Shah for the respondent -state and Mr. Mohd. Shahrukh Saiyed for the respondent No. 2 have 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 have urged this Court to dismiss the present appeal.

7. As the matter has been dismissed by an o