DIVYESH HARISHKUMAR TRIVEDI Vs. BHAVESH JIVANLAL KALARIYA

JUDGEMENT

(1.) The present appeal is filed by the appellant - original complainant under Sec. 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the judgment and order of acquittal dtd. 30/05/2023 passed by the learned 6 th Additional Judicial Magistrate, First Class, Bharuch (hereinafter referred to as "the trial court") in Criminal Case No.343 of 2019, whereby, the learned Trial Judge has acquitted the original accused respondent No.1 herein for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act").

(2.) Heard learned advocate Mr.Aditya Pandya, appearing on behalf of the appellant - original complainant, learned advocate Mr.Dhruv K. Dave, appearing on behalf of the respondent No.1 - original accused and learned APP Mr.Yuvraj Brahmbhatt, appearing on behalf of the respondent No.2 - State of Gujarat.

(3.) Learned advocate Mr.Pandya has submitted that neither the appellant nor the advocate engaged to represent his case, could remain present before the trial court at the time of hearing of the criminal case and in their absence the trial court has passed the impugned order of dismissed for default rejecting the complaint of the present appellant. He has submitted that the trial court has recorded that the advocate of the complainant as well as the complainant are not appearing in the matter since many times and ample opportunity was given to remain present and the matter is pending at the stage of service of summons and no efforts are made to serve the summons, which is contrary to the records of the case, as the advocate of the complainant was appearing and representing the complainant and taking steps in furtherance of service of summons and then bailable warrants. He has submitted that thereafter, the advocate of the complainant was appointed as Defense Counsel and therefore, the complainant had engaged another advocate who had filed his appearance on behalf of the complainant and thereafter, the mother of the complainant was not keeping well and for that reason, the complainant could not remain present before the trial court only on three occasions, however, without considering these aspects, the trial court has rejected the complaint and acquitted the respondent accused, and therefore, learned advocate Mr.Pandya has urged that the present appeal be allowed and the impugned order passed by the trial court be quashed and set aside.