- (1.)The appellant has filed this criminal appeal under the provisions of Sec. 378 of the Criminal Procedure Code,1973 (the Code) against the orders dtd. 11/12/2021 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No. 125 of 2017 whereby, the same was dismissed for default, for want of non prosecution on behalf of the complainant and the accused is acquitted.
(2.)Heard learned advocate Mr. Viral Vyas with learned advocate Mr. Kishan Prajapati for the appellant, learned APP Ms. Jirga Zaveri for the respondent No.1 and learned advocate Mr. Dipak B. Patel for the respondent No.2.
(3.)Brief facts of the case on hand are that the appellant is the resident of Modasa and doing business in name and style of Shreeji Enterprise and as respondent No.2 is resident of Modasa and running Laxmi Guest House and he is known to the appellant and having good friendship with him. That, in the year 2016, the respondent No.2 herein came to the shop of appellant and asked for Rs.10.00 lakh for development of his business and therefore, appellant gave Rs.10.00 lakh to the respondent No.2 on six months credit and when the appellant demanded his money back, the respondent No. 2 had issued cheque of Rs.10.00 lakh of Union Bank of India, Modasa bearing number 010844 dtd. 14/1/2017, in favour of appellant. That, the on presentation of the cheque, the same had been returned with endorsement of "Opening Balance Insufficient" on 16/1/2017 and therefore, the appellant herein had sent statutory notice though his advocate to the respondent No.2 at his residence as well as at his business place, but he denied to accept the notice and at his business place it was not served as he was not available and therefore, through courier, notice had been served upon the respondent No.2 on 21/1/2017. That, since the accused - respondent No.2 did not pay the cheque amount within time limitation, the appellant herein, has filed a private complaint under Sec. 138 of the Negotiable Instruments Act, 1881 before the Judicial Magistrate First Class, Modasa against the respondent No.2- accused and the same has been registered as Criminal Case No.125 of 2017. That, the summons was issued to the respondent No.2 but initially he did not appear and thereafter, warrant came to be issued and the respondent No.2 appeared through his advocate and thereafter, the chief of the appellant came to be recorded and he has been cross examined by the accused and thereafter, the document list was produced and that was objected by the respondent No.2 and the respondent No.2 has started to remain absent and therefore, upon application again warrant came to be issued and thereafter as there is rises in Covid-19 cases and as everything was closed and therefore, the appellant could not remain present in trial on some occasion and as the appellant was in impression that the courts are still not started and even his advocate has also not informed to him nor he remained present before the learned Court below and therefore, the learned Court below passed an order dtd. 11/12/2021, whereby the learned Court below has dismissed the Criminal Case for want of prosecution under Sec. 256 of the Criminal Procedure Code for non appearance of the complainant and thereby has acquitted the respondent No.2- accused from the charge of Sec. 138 of the Negotiable Instruments Act.