JUDGMENT : 1. The appellant-(original complainant) has filed this criminal appeal under the provisions of Section 378 of the Criminal Procedure Code,1973 (the Code) against the order dated 23.1.2020 passed by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No. 37901 of 2018 whereby, the same was dismissed for default, for want of non prosecution on behalf of the complainant and the accused is acquitted. 2. Heard learned advocate Mr. Bhavik Samani for the appellant, learned APP Mr. Ronak Raval for the respondent No.1- State. Rule is not received back qua the respondent No.2. 3. Brief facts of the case on hand are that a private complaint has been filed by the current appellant, who is registered under the Banking Companies Act along with necessary evidence, under Section 138, 141 and 142 of the Negotiable Instruments Act against the respondent No.2. That, on 17.04.2018 as the cheque given by the respondent to the appellant for an amount of Rs.12,93,596/- by which the appellant has given loan. That, after verification the case came to be registered as Criminal Case No.37901 of 2018. That, after due verification the learned Trial Court issued process vide order dated 17.04.2018. That, learned Magistrate recorded the plea of the accused person and the accused had not pleaded guilty and claimed his innocence and prayed for the trial. That, trail has been conducted and the respondent was not found guilty due to absence of the prosecution as the complainant was not present. That, the respondent No.2 is the original accused, who has failed to honor his legal debt to the tune of Rs.12,93,596/- taken as loan. That, on 9.12.2019, the advocate was himself has filed a retirement application and hence in the absence of the complainant the authorized personal was relieved of his responsibility by the company and have been transferred and hence, the nominated a new power of attorney, who was unaware of the next date as the advocate had retired, hence, due to the miscommunication the complainant was unable to remain present. 4. Learned advocate for the appellant submitted that the impugned order dismissing the case and thereby, acquitting the accused is bad, unjust, improper, under misconception of law and facts, against the evidence available on record and contrary to the settled legal position of law. He also submitted that impugned order is manifestly erroneous and demonstrably unsustainable. 4. Learned advocate for the appellant submitted that the impugned order dismissing the case and thereby, acquitting the accused is bad, unjust, improper, under misconception of law and facts, against the evidence available on record and contrary to the settled legal position of law. He also submitted that impugned order is manifestly erroneous and demonstrably unsustainable. 4.1 The learned advocate for the appellant submitted that the prosecution has not been given any chance to prove the case beyond all the reasonable doubts against the present opponent No.2 for all the offences charged against him and therefore, the learned trial Court ought not to have acquitted the present respondent -accused without hearing the prosecution or issuing any notice to the appellant. 4.2 The learned advocate for the appellant submitted that since the learned trial Court has not properly considered the oral and documentary evidence as the complainant was not allowed to lead the evidence since, the matter was dismissed due to absence of prosecution. He has further submitted that looking to the oral and documentary evidence, if they were allowed to be taken on record, the learned trial Court could have convicted the present respondent No.2. He submitted that the learned Trial Court ought to have appreciated that the prosecution was not allowed to prove that there existed a legal debt that occurred due to the loan being availed by the accused and in-lieu of his failure to pay in time the cheque was issued and it was returned as “Account Blocked” on 05.02.2018. 4.3 Learned advocate for the appellant submitted that instead of passing order under Section 256 of the Criminal Procedure Code and learned trial Court has ought to have passed order on merits as held by the Hon’ble Apex Court that each and every matter should be decided on merits and not on such technical ground. He further submitted that the learned trial Court ought to believe that the interpretation of Section 139 of the Negotiable Instruments Act and the presumption should be drawn in favour of the complainant and rebuttal and the burden of proof and the evidence of rebutment should lies upon the accused instead of complainant but the learned trial Court failed to believe the same. Accordingly, he requested to quash and set aside the impugned order and to restore the matter to decide afresh by the learned trial Court concerned. 5. Accordingly, he requested to quash and set aside the impugned order and to restore the matter to decide afresh by the learned trial Court concerned. 5. Learned Additional Public Prosecutor Mr. Ronak Raval for the respondent – State submits to pass an appropriate order. 6. Having heard the arguments advanced and considering the facts and circumstances of the case on hand and also perusing the impugned orders dated 23.1.2020 passed by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No. 37901 of 2018 it appears that the advocate was himself has filed a retirement application and hence in the absence of the complainant the authorized personal was relieved of his responsibility by the company and hence, the nominated a new power of attorney, who was unaware of the next date as the advocate had retired, hence, due to the miscommunication the complainant, could not remain present, the same came to be dismissed for default, for want of prosecution. It is a settled principle of law that a party should not remained unheard. It is also settled principle of law that adjudication should be on merits rather than on mere technicalities. 6.1 In this regard, it would be worthwhile to refer to a decision of the Co-ordinate Bench of this Court in the case of Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat and Ors., Manu/GJ/1042/2013, wherein, it is some important paras read as under : “10. In the above factual background, reference may be made to the provisions of Sec. 256 of the Code, which are reproduced herein below: Sec. 256. Non-appearance or death of complainant:- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein above contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-sec. (2) The provisions of sub-sec. (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death. (Emphasis supplied) 11. Though, it is not disputed that the power to dismiss a complaint for non-appearance of the complainant has been conferred by Sec. 256 of the Code, at the same time, this provision of law also confers discretion upon the learned Magistrate to adjourn the hearing of the case to some other day, if he thinks it proper to do so. The approach to be adopted by the Court in each situation would depend on the facts and circumstances of the case. However, it would be a prudent exercise of power if a balance is maintained, weighing the facts against the interest of justice. 12. In this context, it would be appropriate to refer to the decision in State of Gujarat v. Keshavram Shivram Devmurari, 1977 GLR 524 , wherein this Court has held as below: 5. Under Sec. 256 of the Code, the Magistrate has no doubt, power to acquit the accused if the complainant does not appear on the day appointed for the appearance of the accused or any day subsequent thereto. This power has been conferred on the Magistrate obviously for the ends of justice and with a view to see that an accused person is not subjected to any undue harassment. By way of abundant caution, the very Section further provides that it is not obligatory on the part of the Magistrate to dismiss the complaint and he has been clothed with the power to adjourn the hearing of the case to some other day. The proviso annexed to this Section further makes the position crystal clear. It lays down that where the complainant is represented by a pleader or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The situation as was before the learned Magistrate on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this Section. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the Court of this learned Magistrate or in the Court of any other Magistrate. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the Court of this learned Magistrate or in the Court of any other Magistrate. A copy of this judgment is directed to be circulated to all the Magistrates in the State. (Emphasis supplied) 13. Further, in Ratanlal Gulabchand Gupta v. Sahara Sev Gruh Udyog Bhandar (supra), this Court has held as below: 3......In our this adversary system in the country, there is nothing wrong of dependent of a litigant who have chosen to engage an Advocate in the matter on him. In the case of this nature, on every date is fixed or the proceedings are taken up, the complainant's presence is not necessary, and more so, where he has engaged an Advocate. It is unfortunate that the Advocate was not sufficiently vigilant in conducting the matter. But for this act of the Advocate, why the poor complainant should suffer. On 24-10-1996, the petitioner was present in the Court and 24-12-1996 was the next date fixed therein. On that date the matter was not on the Board. The best course available in these facts to the petitioner was to contact his Advocate, and I do not find any perversity in the approach of the litigant to act in accordance with the advice of the Counsel. I fail to see why the case of the petitioner has not been accepted by both the Courts below. A complainant, in his absence, may face consequences of the dismissal of the complainant as well as discharge of the accused. How absence of the complainant in the criminal case is beneficial to him; The absence of the complainant in the matter results in dismissal of his complaint, he has to take all the precautions and in this case petitioner did and he engaged an Advocate. On 24-12-1996 the next date was not fixed in case could not be known by the petitioner and I do not find any abnormality in the approach of the petitioner to rely upon the advice of his Advocate. The Advocate has told him to inform him the next date fixed in the matter. It is a different matter that the Advocate has not informed the petitioner the next date fixed in the matter. The Advocate has told him to inform him the next date fixed in the matter. It is a different matter that the Advocate has not informed the petitioner the next date fixed in the matter. Though Advocate is supposed to take all the care in the matter of his client, but for his action, omission or lapse, ultimately the poor litigant has to pay heavily. It is not the case of the respondents that the complainant petitioner has not engaged an Advocate in this case. He had engaged the Advocate to avoid any adverse order in the complaint for his absence and to defend his case. It is unfortunate that the Advocate did not remain present and for this act, he has paid heavily. By keeping himself absent in the proceedings the complainant is not benefited. The trial Court as well as the Revisional Court has not considered this aspect of the matter. They proceeded with totally a technical approach despite the fact that in series of decisions of this Court their approach is not appreciated. Even for the time-being it is accepted that the complainant was not present, how far it is justified on the part of the trial Court to dismiss the complaint where he engaged an Advocate to represent him. It is the case where trial Court has punished the petitioner for the inaction or omission of the Advocate. The learned Court below should not have given any premium to the accused for his benefit on the ground of the absence of the Advocate. In the facts of this case, the orders passed by both the Courts below cannot be allowed to stand. A time comes where the trial Court as well as the Sessions Court have to look into the matter with justice-oriented approach........ ... ... ... ... In such matters, the approach of the Courts should have been pragmatic and not pedantic. If the matters are decided by use of the power to dismiss the matter for default, it does not give a good name to the institution. Where the litigants approach the Court for redressal of grievances, the cases are to be decided on merits with a judicial approach rather than the Courts exercising power to dismiss the matter for default. (Emphasis supplied) 14. In Mohd. Where the litigants approach the Court for redressal of grievances, the cases are to be decided on merits with a judicial approach rather than the Courts exercising power to dismiss the matter for default. (Emphasis supplied) 14. In Mohd. Azeem v. A. Venkatesh, reported in MANU/SC/1012/2002 : 2002 (7) SCC 726 , the Supreme Court has held as below: 3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic. absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint. 4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant. (Emphasis supplied) 6.2 Moreover, in the decision in Manojbhai Jasmatbhai Ramoliya v. State of Gujarat and Ors., MANU/GJ/0217 /2020, it is observed as under: 9. This Court has come across the judgment of the Apex Court reported in MANU/SC/0894/1998 : 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. 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. 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." 7. Thus, in the overall facts and circumstances of the case, in the considered opinion of this Court, the trial Court has taken a very hyper-technical view of the matter and dismissed the case. Accordingly, these appeal deserves to be allowed by setting aside the impugned order and restore the case, at the stage where it has been dismissed for default. This Court deems it proper to allow this appeal with some exemplary costs. 8. For the forgoing reasons, the present appeal succeeds and is allowed in part. The impugned order dated 23.1.2020 passed by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No. 37901 of 2018 is set aside. This Court deems it proper to allow this appeal with some exemplary costs. 8. For the forgoing reasons, the present appeal succeeds and is allowed in part. The impugned order dated 23.1.2020 passed by the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Criminal Case No. 37901 of 2018 is set aside. The case is directed to be restored to its original file, at the stage of trial where it was dismissed for default, for deciding the same afresh by the concerned Court below, after giving due opportunities to both the sides, in accordance with law, on merits and without being influenced by any orders. 8.1 Nonetheless, a cost of Rs.1,000/- (Rupees One thousand only) is imposed upon the appellant – original complainant, which shall be deposited within a period of two weeks before the District Legal Services Authority of the concerned district. 8.2 The trial Court concerned is directed to decide the case as expeditiously as possible but not later than six months from the date of receipt of copy of this judgment and order. The parties are also directed to extend full co-operation and shall not seek unnecessary adjournments. 8.3 R&P, if received, be transmitted back to the learned trial Court concerned forthwith.