HINABEN HASMUKHBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Though 'Rule' is served as per Report filed by the Registry on 18/12/2023, no one has appeared either through an advocate or through the person.

(2.) This appeal is filed challenging the judgment and order of acquittal passed by learned 3rd Additional Judicial Magistrate First Class, Palanpur dtd. 30/11/2022 in Criminal Case No.4488 of 2018.

(3.) It is the case of the complainant that complainant is doing the business in the name and style of Sarvottam Petroleum and selling the diesel and petrol under the agency of Indian Oil Corporation. The Respondent-accused is the contractor and doing the business of transport of Banas Dairy. As for refilling of the milk and for transporting the same, tankers were used and diesel was filled up on credit basis from the petrol pump of the complainant. There was a due of Rs.1,92,695.00 as on 10 th March, 2018. For payment of the aforesaid due, the cheque bearing Cheque No.178509 was issued in favour of the complainant and on depositing the same, it was returned with the endorsement of 'insufficient fund'. After following the procedure prescribed under the Negotiable Instruments Act, the complaint came to be filed being a Criminal Case No.4488 of 2018. After recording verification of the complainant, summons came to be issued vide an order dtd. 4/2/2019 and thereafter from time to time, the matter was adjourned because of non-appearance of the respondent-accused. During this period, the bailable warrant and Non Bailable Warrant was also issued, which was in existence upto 27/8/2022. On that day, the respondent-accused appeared and filed an application for cancellation of warrant below Exh.8, which was allowed and case was kept for the further statement of the accused. It is further case of the complainant that thereafter for 4 (four) consecutive dates, the complainant was not remained present because of miscommunication between the learned advocate and the complainant. Therefore, the impugned order was passed on 30 th November, 2022 dismissing the complaint for non prosecution by exercising the power under Sec. 256 of the Code of Criminal Procedure, which is impugned before this Court.