A trial court must not dismiss a case for non-appearance of the complainant if sufficient evidence exists on record. Acquittal should be conditioned on the merits of the evidence presented.

ORAL JUDGMENT

1. Though bailable warrant served, the respondent no. 1 has not appeared either in person or through an advocate.

2. The present appeal is filed by the appellant – original complainant under Section 419 of Bharatiya Nagarik Surakhsha Sanhita , 2023 against the order dated 01.04.2025 passed by the learned Additional Chief Judicial Magistrate, Dahod (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 4546 of 2024, 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. 1 - 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”).

2.1 The respondent No. 1 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity.

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

3.1 The appellant and the accused were known to each other as they were friends and as the accused was in need of some financial assistance for renovation of his house, the appellant had given Rs. 2,60,000/- in piecemeal. The accused issued cheque no. 017295 for Rs.2,60,000/- dated 30.06.2024 from his account with Union Bank, Dahod Branch. The cheque was deposited on 22.08.2024 in the bank of the appellant which returned unpaid with the endorsement “Insufficient Funds”. The appellant gave the statutory demand notice on 20.09.2024 which was duly served to the accused and no payment was made hence the appellant filed the complaint under Section 138 of the NI Act before the Court of Additional Chief Judicial Magistrate, Dahod which was registered as Criminal Case No. 4546 of

2024.

3.2 The learned Trial Court was pleased to consider the the documents produced and took cognizance for the offence under Section 138 of the NI Act and issued summons to the accused which was duly served to accused but the accused did not remain present before the learned Trial Court and the learned Trial Court had issued warrant but the same returned unserved and by an order dated 01.04.2025, the learned Trial Court was pleased to pass an order under Section 256 of The Code of Criminal Procedure and dismiss the complaint.

4. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378 of Code of Criminal Procedure , 1973.

5. Heard learned advocate Mr. Saddamhussain Chauhan appearing for the appellant and learned APP Mr. Pranav Dhagat for the respondent – State. Though served, none has appeared on behalf of the respondent no. 1 to make any submissions.

6. Learned advocate Mr. Saddamhussain Chauhan 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 the learned Trial Court has not appreciated the evidence on record and has passed the impugned order and hence, the same may be quashed and set aside.

7. Learned APP Mr. Pranav Dhagat for the respondent – 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