JUDGMENT : 1. The appellant – Original Complainant has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the order dated 12.09.2018 passed by the learned 3rd Additional Chief Judicial Magistrate, Rajkot (hereinafter referred as “the learned Trial Court”) in Criminal Case No. 875 of 2016. 2. Heard learned Advocate Mr.M.S.Padaliya, for the appellant, learned APP Ms. Jirga Jhaveri for respondent No.1 – State. Though the Respondent Nos. 2 and 3 duly served, not to choose to remain present either personally or through an advocate. Order under Challenge: 3. Learned 3rd Additional Chief Judicial Magistrate, Rajkot has passed an order dated 12.09.2018, dismissing the private complaint being Criminal Case No. 875 of 2016 filed by the present appellant against the respondent No. 2 and 3 for the offences punishable under Section 138 of the Negotiable Instruments Act (For brevity “NI Act”) for default for non-prosecution as the appellant remained absent for proceeding with the criminal case. 4. Arguments of the Appellant: 4.1 The learned Advocate for the appellant has submitted that the Private Complaint was filed being Criminal Case No. 875 of 2016. That, after process was issued and trial commenced and thereafter the respondent No. 2 did not remain present and an application for issuing non-bailable warrant against respondent No. 2 was preferred and the same was allowed ON 16/06/2016. That, thereafter again an application for re-issuance of warrant against respondent No. 2 was preferred and the same was also allowed on 10/08/2016. That, the respondent No.2 preferred an application for cancellation of warrant which was rejected and the police was ordered to take the respondent No. 2 in police custody. Thereafter, respondent No.2 preferred bail application and release the respondent No.2 on bail on condition to remain present on every date of the case. That, thereafter, the respondent No.2 had given exemption reports on several dates, which were granted. Thereafter, respondent No.2 preferred bail application and release the respondent No.2 on bail on condition to remain present on every date of the case. That, thereafter, the respondent No.2 had given exemption reports on several dates, which were granted. 4.2 The learned advocate for the appellant further submitted that the learned advocate for the appellant and appellant have remained present most of the time but on the said date of hearing the learned advocate for the appellant reached late in the court room but in meantime the learned Trial Judge has vide impugned order dismissed the complaint filed by the appellant for non-prosecution on the ground of absent of the appellant and learned advocate for the appellant relying on the Judgment and order dated 18.01.2010 passed by this Hon'ble High Court in the case of Bhavani Textiles Mills Vs. State of Gujarat. 4.2 The learned advocate for the appellant further submitted that the learned Trial Judge has not appreciated the fact that most of the time appellant as well as learned advocate for the appellant remained present, but, the respondent No. 2 had given exemption reports on several time. Only on the said date learned advocate reached late to the Court Room and before that matter was dismissed for default for non-prosecutions. As such, matter is not decided on merit and therefore, the impugned order may be quashed and set aside and the matter may be remanded to the trial court for deciding on merits. The learned advocate for the appellant relied on the judgment of this Hon'ble Court in the case of Ratanlal Gulabchand Gupta Vs. Sahara Sev Gruh Udyog Bhandar reported in (2001 4 GLR 1987. 5. Cause list reflects that the respondent Nos. 2 and 3 are duly served. On perusal of the order dated 23/12/2019 passed by the coordinate bench of this Court, it appears that the private respondent was remained present before the Court and sought time on the ground of talks of settlement, however, today when the matter is called out, neither respondent No. 2 and 3 nor any advocate remained present on their behalf to oppose the case. Arguments of the learned APP for the State: 6. Learned APP has submitted that the present matter is with regard to the complaint between private parties, the Hon’ble Court may pass just orders in the interest of justice. Facts of the Case: 7. Arguments of the learned APP for the State: 6. Learned APP has submitted that the present matter is with regard to the complaint between private parties, the Hon’ble Court may pass just orders in the interest of justice. Facts of the Case: 7. Brief facts of the case are that appellant has filed private complaint before the Additional Chief Judicial Magistrate, Rajkot under Section 138 of the Negotiable Instruments Act, 1881 against the present respondent Nos. 2 and 3. The said case was registered as Criminal Case No. 875 of 2016. The learned Trial Court has issued process in the said case and commenced the trial. On preferring application for issuance of non-bailable warrant against the accused, the learned Trial Court has by granting the said applications, ordered to issue non-baialable warrants. That, thereafter on 12/09/2018, on application preferred by the respondent No. 2 for dismissing the case for non-prosecution on the ground of absence of the learned advocate for the appellant and the appellant, the learned Trial Court has by granting the said application of respondent No.2, vide impugned order dated 12/09/2018 dismissed the Criminal Case No.875 of 2016 for non-prosecution. Hence, the present appeal. Merits of the case: 8. Heard the learned advocate for the appellant and learned APP for the State. Main argument of the appellant is that most of the time learned advocate for the appellant – original complainant as well as the appellant – original complaint remained present for proceeding the case. However, the respondent Nos. 2 and 3 – original accused were not remaining accused, therefore, the original complainant – the appellant had preferred an application for issuance non-bailable warrant, which were granted by the learned Trial Court. Only on the date of impugned order, the learned advocate for the appellant reached late in the Court Room, however, prior that considering the application tendered by the respondent No.2, the learned Trial Court has dismissed the case for non-prosecution. That the case not decided on merit and dismissed for non-prosecution, therefore, impugned order may be quashed and matter may be remanded to the Trial Court for decision on merit. 9. Perused the papers of the appeal and impugned order. The private complaint filed by the appellant was registered as Criminal Case. The appellant had engaged an advocate. Summons has been issued to the accused. 9. Perused the papers of the appeal and impugned order. The private complaint filed by the appellant was registered as Criminal Case. The appellant had engaged an advocate. Summons has been issued to the accused. Thereafter, on two occasion non-bailable warrant have been issued against the respondents-original accused. It is pertinent to note that the private complaint was registered as criminal case and summons/warrants have also been issued upon the accused. Thereafter, matter could not proceed further on merit and resulted into dismissal for non-prosecution. There are ample powers to the Court to secure presence of the witnesses or accused. From bare reading of the impugned order, it appears that no efforts have been made for this purpose. Therefore, considering the principle of natural justice, this Court is of the view that an opportunity is to be given to the prosecution to prove his case on merit by remanding the matter to the learned Trial Court for hearing the case on merit. 9.1 On perusal of the record it transpired that accused had remained absent several times. The non-bailable warrant were issued to secure presence of the accused. The application for cancellation of non-bailable warrant also rejected. The application at Exh. 13, 16, 19, 20 for exemption were granted to the respondent – accused. Per contra it appears that the complaint was dismissed when the complainant was absent only one occasion. 10. This Court has come across the judgment of the Apex Court reported in AIR 1998 SC 596 dealing in case of Associated Cement Co. Ltd. Vs. Keshavanand wherein scope and purpose of insertion of Section 256 in the Code is discussed, which reads as under: “17. What was the purpose of including a provision like S. 247 in the Code (or S.256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused-against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum. 18. The Section, therefore, affords a protection to an accused-against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum. 18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the steps of axing down the complainant may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 11. The learned Trial Court has in impugned order recorded that present complaint is registered in the year 2015. Thereafter, on 24/7/15, affidavit of the Examination-in-chief of the accused was in the case vide Exh.4 and 28/2/18 plea of the accused was recorded and thereafter, as till date complainant is not present for cross-examination, defence has preferred an application for dismissal of case for non-prosecution on the ground of absence of the complainant. Considering the submission of the defence, today till 6.00 O'clock, neither complainant nor any submission or application for complainant, it appears that the complainant is not interested to proceed with the case. As such negligence is established on the part of the appellant. Therefore, this Court is of the view that cost is required to be awarded to the respondents. 12. For the reasons recorded here-in-above, the present appeal is partly allowed. As such negligence is established on the part of the appellant. Therefore, this Court is of the view that cost is required to be awarded to the respondents. 12. For the reasons recorded here-in-above, the present appeal is partly allowed. The impugned order dated 12/09/2018 passed by the 3rd Additional Chief Judicial Magistrate, Rajktot in Criminal Case No.875 of 2016 is hereby quashed and set aside and the matter is remanded back to the learned Trial Court for deciding the case on merit. 13. The Appellant – original complainant is directed to extend full co- operation and see to it that he remains present on the dates of the hearing before the trial court. The trial Court shall proceed further in accordance with law. 14. The appellant shall pay cost of Rs.5,000/- (Rupees Five Thousand only) to the District Legal Service Authority, Rajkot within one month from today. If it is not paid the Trial Court shall proceed to recover the cost under Section 431 of the Code. 15. Record and proceedings shall be sent back to the learned Trial Court forthwith. 16. Rule is made absolute the aforesaid extent. Direct service permitted.