PANKAJKUMAR MANGALBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Chintan Popat, learned advocate on record for the applicant-original complainant, Mr. Sikander Saiyed, learned advocate on record for respondent no.2-original accused and Ms. Monali Bhatt, learned APP who has appeared on behalf of respondent no.1-State.

(2.) Considering the nature of dispute involved, with consent of learned advocates on record, this appeal is taken up for final hearing. This appeal is filed under Sec. 378(4) challenging the order dtd. 26/2/2021 passed below Exhibit-1 by the learned Chief Judicial Magistrate First Class, Mahisagar, at Lunawada in Criminal Case No. 110 of 2018. By the said judgement and order, the learned Magistrate has proceeded to dismiss the complaint for default under Sec. 256 of Cr.P.C. noticing the absence of the complainant.

(3.) At the outset, the learned advocate for the appellant has placed on record the certified copy of Rojkam of Trial Court. The same is permitted to be taken up on record. The learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate. It is submitted that the learned Magistrate upon appreciation of the record had noticed that after the plea of accused was recorded, the complainant has failed to appear for recording his evidence. The Trial Court noticed that the plea of accused was recorded and thereafter, since 5/10/2019, the matter has not progressed at the stage of production of evidence of the complainant. In absence of any application or report being tendered and in absence of the complaint, the Trial Court has proceeded to resort to powers conferred under Sec. 256 of the Code.