MANSURI RAJAKBHAI ABDULBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed under Sec. 378 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) by the appellant-original complainant, challenging the judgment and order passed by the Learned Additional Chief Judicial Magistrate Taluka Idar, District Sabarkantha dated 13-05- 2023, dismissing the complaint by exercising the power under Sec. 256 of the Cr.P.C in special sitting (Lok Adalat).

(2.) It is the case of the complainant that, the complainant and the respondent-accused were friends and were having family relation, hence when the respondent- accused informed the complainant regarding purchasing of a flat at Gandhinagar, complainant immediately gave Rs.2,40,000.00 as down-payment for the possession of the house to respondent-accused, but later respondent- accused informed the complainant that it was not possible to obtain the possession of the said flat and also assured him that the amount paid by the complainant shall be returned back to him. On making demand the two cheques bearing No.161746 dtd. 24/5/2018 and No. 161712 dtd. 9/8/2018 for the amount of Rs.36,000.00 and Rs.2,00,000.00 respectively were issued in favor of the complainant. At the time of issuing the cheque, an assurance was given that, on depositing the same, an amount will be credited in the account of the complainant.

(3.) On depositing the cheque, same was returned with an endorsement of 'fund insufficient', therefore the demand notice was issued to the respondent-accused on 31-08- 2018 which was received by the respondent-accused on 12/9/2018. As the demand notice was neither replied nor complied with, on following the procedure prescribed under the Negotiable Instruments Act, 1886 ('the N.I.Act' referred hereinafter), a private complaint was filed. After recording the verification, learned Trial Court passed an order below Exh.1 issuing the summons under Sec. 204 of the Cr.P.C. vide order dtd. 24/10/2018. Though the summons/warrants were issued, the respondent remained absent, therefore by impugned order dated 13- 05-2023, the learned Trial Court while sitting in Lok Adalat has dismissed the complaint by observing that though more than sufficient opportunities were provided, but no fruitful actions were taken to serve the respondent-accused, therefore learned Trial Court has dismissed the complaint by exercising the power under Sec. 256 of the Cr.P.C. which is impugned before this Court.