Dismissal under Section 256 requires consideration of the complainant's representation and existing evidence, ensuring fairness in prosecutorial processes.

ORAL JUDGMENT

1) Learned advocate Mr. Viral V. Dave submits that he has received instructions to appear on behalf of the respondent Nos 2 to 4 and seeks permission to file his appearance. Registry to accept the same.

2) The present appeal is filed by the appellant – original complainant under Section 419 of the Code of Criminal Procedure, 1973 , challenging the order dated 05.12.2024 passed by the Court of learned 18th Additional Chief Judicial Magistrate, Negotiable Instrument Act Court No. 34, Ahmedabad (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 80768 of 2019, whereby the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 came to be dismissed under Section 256 of the Code of Criminal Procedure, 1973 and the respondent No.2 to 4 – original accused came to be acquitted from the offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the “NI Act”).

2.1) The appellant and the respondent Nos.2 to 4 are hereinafter referred to as “the complainant” and “the accused” as they 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 is the proprietor of Roma Converter and the accused is a partnership firm namely Tapodhan Food Products, while the accused Nos. 2 and 3 are the partners thereof. The appellant and the accused had business transactions and a bill of Rs.6,17,017/- was raised, towards which, the accused issued cheque No. 796205 for Rs.5,39,915/- dated 04.07.2019 drawn on Union Bank, Textile Market, Surat Branch. The said cheque, when deposited by the complainant with Karur Vysya Bank, Naroda, Ahmedabad Branch, returned unpaid with the endorsement “Exceeds Arrangement”. The statutory demand notice was duly served to the accused, however, no payment was made within the stipulated period and hence, the appellant instituted Criminal Case No. 80768 of 2019 under Section 138 of the NI Act.

3.2) The learned Trial Court had taken cognizance of the complaint and issued summons. The accused avoided appearance despite service and the matter was pending for issuance of bailable warrant. Meanwhile, the complainant had already filed the affidavit of examination-in-chief at Exh.4 and produced supporting documents vide list at Exh.5 but without appreciating the same and without considering that the evidence was already on record, the learned Trial Court, by the impugned order dated 05.12.2024, dismissed the complaint for default under Section 256 of the Cr.P.C .

4) Being aggrieved and dissatisfied by the impugned order the appellant has preferred the present Criminal Appeal under Section 419 of the BNSS, 2023.

5) Heard learned advocate Ms. Renu Verma appearing for the appellant and learned APP Ms. Chetna Shah appearing for the respondent No. 1– State and learned advocate Mr. Viral Dave for the respondent Nos. 2 to 4.

6) Learned advocate Ms. Renu Verma 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 evidence of the appellant was on record but without considering the same, the impugned order has been passed and therefore, the same may be quashed and set aside.

7) Learned APP Ms. Chetna Shah 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 h