1. The present appeal is filed by the appellant - original complainant under S.378(4) of the Code of Criminal Procedure, 1973 (for short "CrPC") against the Judgment and order dated 12.11.2021 passed by the learned 10th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 3616 of 2017, whereby the Trial Court has dismissed the Criminal Case for want of prosecution as the original complainant did not remain present under the provisions of S.256(3) of CrPC and the original accused - respondent No.2 herein came to be acquitted from the charge levelled against him under S.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"). 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 is the proprietor of Balaji Sales Corporation and the accused is the proprietor of Shri Tirupati Metallic and the accused had purchased goods from the appellant vide Bill No. 7 dated 29.08.2016 for Rs.1, 03, 835/- and Bill No. 8 dated 20.09.2016 for Rs.1, 99, 361/- towards which the accused had issued cheque No. 084576 dated 16.10.2016 for Rs.1, 03, 835/- and cheque No. 084562 dated 25.10.2016 for Rs.1, 99, 360/- of his account with The Surat Peoples Cooperative Bank Ltd., Sachin Branch, Surat. The appellant deposited cheque No. 084576 in his account with IDBI Bank, Katargam Branch, Surat and the cheque was returned with the endorsement "Funds Insufficient". The appellant gave the demand statutory notice through his advocate on 14.12.2016 which was duly served to the accused on 15.12.2016, but the accused did not repay the amount and hence the appellant filed the complaint under S.138 of the N.I. Act, before the Chief Judicial Magistrate, Surat.
2.2. The learned 2nd Additional Chief Judicial Magistrate. Surat was pleased to consider the affidavit, documents produced vide a list at exhibit 3 and examination - in - chief of the appellant produced at exhibit 4 and take cognizance for the offence under S.138 of the N.I. Act and passed an order to issue summons to the accused and the summons was duly served to the accused. The accused did not appear before the learned Trial Court and the matter was pending for bailable warrant and thereafter non - bailable warrant which could not be served on the accused. By an order dated 12.11.2021, the learned 10th Additional Chief Judicial Magistrate Surat 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 S.378(4) of Criminal Procedure Code.

4. Heard learned advocate Mr. Viral V. Dave appearing for the appellant and learned APP Mr. Bhargav Pandya for the respondent - State. Though served the respondent No. 2 has not appeared either in personal or through an advocate.

5. Learned advocate Mr. Viral V. Dave 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 Judgment and therefore, the same may be quashed and set - aside.

6. Learned APP Mr. Bhargav Pandya 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 S.256 of the CrPC and hence, this Court may not interfere with the impugned order and has urged this Court to dismiss the present appeal.

7. As the matter has been dismissed by an order under S.256 of the CrPC it is appropriate to have a glance of S.256 of CrPC