JUDGMENT : Order in Criminal Misc. Application As this Court deems it fit to decide the case on merits, the formal leave seeking to prefer an appeal is granted. The application for leave to prefer an appeal stands disposed of accordingly. Order in Criminal Appeal 1. This appeal is filed challenging the judgment and order dated 27.01.2020 passed by the learned 2nd Additional Judicial Magistrate First Class, Padra in Criminal Case No.707 of 2017 whereby, the learned trial Court has dismissed the complaint for non-prosecution. 2. It is the case of the complainant that the complainant, who is the financial institution, has sanctioned the term loan of Rs.5,54,000/- for purchase of the car on 10.09.2015 to the respondent – accused. The loan account was also opened in the complainant branch being account no.352224768978. After availing the loan facility, the respondent – accused remained failed in making the payment of installment and on raising the demand of the loan amount, the cheque of Rs.5,44,237/- being cheque No.703930 dated 12.01.2017 of the State Bank of India, Sun Pharma Road, Atladra branch was given. On depositing the said cheque, it was returned with an endorsement of ‘insufficient fund’ and, therefore, the demand notice under Section 138 of the Negotiable Instruments Act was issued and thereafter, on following the procedure prescribed under the Act, the private complaint came to be filed. On filing the private complaint, summons came to be issued on 15.02.2017, making it returnable on 15.03.2017. On 28.06.2017, the accused appeared to provide above paper, it was adjourned. On 06.09.2017, again accused remained absent therefore, case came to be adjourned from time to time. On 28.06.2018, non-bailable warrant came to be issued to the accused. From the record of the learned trial Court, it transpires that again, the respondent – accused remained absent and, therefore, application for issuance of non-bailable warrant was given, which was allowed on 11.10.2018. Though the non-bailable warrant remained unexecuted till the date of impugned order and because of non-remaining present by the complainant and his advocate for four consecutive dates, the learned trial Court has passed the judgment and order, acquitting the respondent – accused by exercising the powers under Section 256 of the Code of Criminal Procedure, which is impugned before this Court. 3. Heard learned advocate Mr.Rituraj Meena for the complainant. 3. Heard learned advocate Mr.Rituraj Meena for the complainant. Though, the notices were served through publication in the newspaper on 22.08.2023, the respondent – accused has chosen not to appear either in person or through an advocate. 4. Learned advocate Mr.Meena submits that the complainant is the bank and financial facility, which was availed by the respondent – accused was not repaid and the cheque which was issued, was dishonoured, therefore, the learned advocate of the complainant has filed the private complaint. The learned advocate submits that though the complainant and his advocate remained present on almost all occasions except four consecutive dates i.e. on 20.08.2019, 03.10.2019, 15.10.2019 and 28.11.2019, the learned trial Court has dismissed the complaint for non-prosecution. The learned advocate submits that for not remaining present, the bank has issued the notice to the concerned advocate on 12.05.2020 and this being a public money which was remained unpaid by the respondent – accused, due to the same, there would be a loss to the public exchequer. The learned advocate submits that it is true that the learned advocate for the complainant did not remain present however, at the same time, the non-bailable warrant which was issued against the respondent – accused, remained unexecuted. Therefore, for not remaining present, no any change would have made in the proceedings. 5. The learned advocate submits that the proceedings under Section 138 is being a time barred litigation, by dismissing the complaint, the complainant would be left remediless. The learned advocate further submits that though in the record, it is mentioned by the learned trial Court that the notice to the complainant was issued however, the said fact is not in the knowledge of the complainant as the officer, who is authorized to file the complaint, has been changed subsequently. The learned advocate submits that the real test in the matters of Negotiable Instruments Act, where the complainant is not remaining present, would always be a good faith. It would be necessary to imply, as to whether the complainant was remained absent for any good reason or not, especially, when the accused did not appear in spite of the summons or warrants issued by the learned trial Court. By making the submissions, the learned advocate prays to quash the impugned order and to restore the complaint to its original file and remand it back for a fresh consideration. 6. By making the submissions, the learned advocate prays to quash the impugned order and to restore the complaint to its original file and remand it back for a fresh consideration. 6. Considering the submissions and before entering into the merits, this Court deems it fit to re-look the provisions of Section 256 of the Code of Criminal Procedure, which is reproduced hereinbelow:- “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 hereinbefore contained, acquit the accused, un- less 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- section (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death.” 7. Considering the above provisions, it transpires that two constraints are imposed on the Court before exercising the powers under Section 256 of the Code of Criminal Procedure. First is if the Court thinks fit that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused. Second is that when the Magistrate considers that the personal attendance of the complainant is not necessary on that day, the Magistrate has power to dispense with the attendance and to proceed with the case. 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 step of axing down the complaint may not be a proper exercise of the powers envisaged in Section. The discretion, therefore, must be exercised judicially and fairly without impairing the cause of administration of the criminal justice. 8. But, if the presence of the complainant on that day was quite unnecessary, then resorting to the step of axing down the complaint may not be a proper exercise of the powers envisaged in Section. The discretion, therefore, must be exercised judicially and fairly without impairing the cause of administration of the criminal justice. 8. Considering the record which is the part of appeal, it transpires that the impugned order was passed on 27.01.2020 dismissing the complaint for non-prosecution on the ground of non-presence of the complainant or his advocate. Prior to that day i.e. on 17.12.2019, the learned Presiding Officer was on leave. Before that on 14.12.2019, there was no any presence or absence recorded of the complainant or his advocate. Prior to that i.e. on 28.11.2019, 15.10.2019, 03.10.2019 and 20.08.2019, on these four consecutive dates, absence of complainant and his advocate were recorded. Before that date i.e. on 26.06.2019, the complainant has given an application below Exh.15 for issuance of the non-bailable warrant and to serve the same through the publication. From the record, it further transpires that on one occasion, the accused remained present i.e. on 28.06.2017 and for recording of the plea and to provide papers, the case came to be adjourned. From that day onwards, again, the accused remained absent and to secure the presence of the accused, application for issuance of the bailable/non-bailable warrant was given. It transpires that the warrants remained unexecuted and the accused remained absent till the date of the impugned order. 9. This Court is of the view that the principle of natural justice requires that due opportunity is to be given to the parties to adduce or produce their respective evidence before the Court and the matter be decided on its own merits. For an offence under Section 138 of the Negotiable Instruments Act, there is no remedy available for the complainant while complaint came to be dismissed for non-prosecution in view of the limitation prescribed under the Act. Therefore, on dismissing the complaint, the complainant, who is the bank and lent money to the respondent – accused, would be left remediless and there would be loss to the public exchequer. 10. In view of the above, this Court deems it fit to quash the impugned order. Therefore, on dismissing the complaint, the complainant, who is the bank and lent money to the respondent – accused, would be left remediless and there would be loss to the public exchequer. 10. In view of the above, this Court deems it fit to quash the impugned order. However, as it is the duty of the complainant to remain present after setting the criminal law in motion and in failing which, appropriate cost is required to be awarded. 11. In view of the above, this appeal is allowed. The impugned judgment and order dated 27.01.2020 passed by the learned 2nd Additional Judicial Magistrate First Class, Padra in Criminal Case No.707 of 2017 is hereby quashed and set aside. The Criminal Case No.707 of 2017 is ordered to be restored to its original file and the learned trial Court is directed to decide the complaint on its own merits after giving due opportunity to the respective parties to lead their evidence. 12. The learned advocate for the complainant is directed to deposit the cost of Rs.20,000/- with the Registry of this Court within 3 weeks from the date of the order. On depositing the same, the Registry is directed to remit the same in the account of Shishu Gruh, Paldi, Ahmedabad by way of electronic mode.