The dismissal of a complaint under Section 256 of the Cr.P.C. must consider the presence of a representative and evaluate case merits before acquitting the accused.

ORAL JUDGMENT

1] The present appeal is filed by the appellant – original complainant under Section 419(4) of the Code of Criminal Procedure, 1973 (for short “Cr. P.C.”) against the order dated 27.06.2024 passed by the learned Judicial Magistrate First Class, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 30343 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 (3) of 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 NI Act”).

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 applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a friendly loan of ₹8,00,000/- from the applicant and a promissory note has been executed and the accused had issued cheque No.000019 for the amount of ₹8,00,000/- dated 28.12.2020 from his account with Bank of Baroda, Surat Branch. The applicant deposited the cheque on 08.01.2021 in his bank account and the cheque was dishonored and the reason mentioned in the return memo dated 16.01.2021 was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 01.02.2021 by R.P.A.D which was duly served on 02.02.2021 and no payment was made and hence the applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Surat under Section 138 of the NI Act, 1881 which was registered as Criminal Case no. 30343 of 2021.

2.2] The learned Trial Court was pleased to consider documents produced and took cognizance for the offence under Section 138 of the NI Act and issued summons to the accused.

2.3] The Summons was duly served and the matter was pending for cross examination and as the applicant or his advocate did not remain present, by an order dated 27.06.2024, the learned Trial Court was pleased to pass an order under Section 256 of The Code of Criminal Procedure and dismiss the complaint.

3] Heard learned advocate Mr. Jigar L. Patel appearing for the appellant and learned APP Ms. Chetna Shah for the respondent No. 1 – State. Though served, the respondent No. 2 has not appeared either appear through an advocate or in person.

4] Learned advocate Mr. Jigar L. Patel 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 judgment is unsustainable and bad in law. Learned advocate further submits that due to a bona-fide 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.

5] Learned APP Ms. Chetna Shah for the respondent No. 1 - State has 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.

6] 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 other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the M