JUDGMENT : M.K. THAKKER, J. 1. The fact situation in the analogous appeals is also same except cheque number and criminal case, therefore, this Court has passed the common order in all these matters. 2. These appeals are filed by the appellant, who is the original complainant, under Section 378 of the Code of Criminal Procedure, challenging the judgment and order dated 01.07.2019 passed by the learned Additional Chief Metropolitan Magistrate, Court No. 28, Ahmedabad in Criminal Case No. 218 of 2016 below Exh.1 by which, the private complaint filed under Section 138 of the Negotiable Instruments Act has been dismissed for default by exercising the powers under Section 256 of the Code of Criminal Procedure. 3. It is the case of the complainant that the complainant is the Corporation owned by the Gujarat Government and is engaged in development of the industry by providing industrial sheds and plots in various plots of Gujarat. The accused is the proprietor of the firm and carrying out the business in the name and style mentioned in the cause-title. 4. It is the case of the complainant that the accused had issued cheque in favour of the complainant to discharge the debt, which was owned by the complainant-Corporation. On presenting the cheque with the bank authority, the same was returned with an endorsement of “account closed” or “exceeds arrangement” and after issuing the statutory demand notice and following the procedure prescribed under the Negotiable Instruments Act, the private complaint came to be filed by the complainant against the accused persons. After recording the verification, the learned trial Court has issued process to the accused persons and on being appeared, the plea came to be recorded and thereafter, the case was adjourned from time to time for one or another reason. 5. It is the case of the complainant that the application was filed by the respondent-accused to recall the witness in which, the learned trial Court has passed the order dated 20.10.2018 wherein, it is observed that after disclosing the defense, the witness be recalled. It is the further case of the complainant that application Exh.7 was filed by the accused on 16.05.2019 for direction and to recall the witness, namely, the complainant for cross-examination. The aforesaid application came to be allowed on 30.05.2019 and the complainant was directed to remain present on the next date of hearing i.e. on 01.07.2019. 6. It is the further case of the complainant that application Exh.7 was filed by the accused on 16.05.2019 for direction and to recall the witness, namely, the complainant for cross-examination. The aforesaid application came to be allowed on 30.05.2019 and the complainant was directed to remain present on the next date of hearing i.e. on 01.07.2019. 6. On 01.07.2019, the complainant has moved an application below Exh.8, seeking adjournment on the ground that against the order passed by the learned trial Court dated 30.05.2019, the complainant wants to file the revision application before the higher forum. The said application came to be rejected by detailed order on 01.07.2019 and the matter was kept in second session directing the complainant to remain present. In the second session again, the application was filed below Exh.9, requesting to grant an adjournment to file the revision application against the order passed below Exhs.7 and 8. The learned trial Court has passed the detailed order on the same day i.e. on 01.07.2019, dismissing the complaint by exercising powers under Section 256 of the Code of Criminal Procedure on the ground of absence of the complainant which is under challenge before this Court in the present proceedings. 7. Heard learned advocate Mr. R.D. Dave for the appellant and learned advocate Mr. Adil Mirza for the respondents. 8. Learned advocate Mr. Dave submits that after the plea was recorded, the application was filed by the accused below Exh.1 requesting the Court to recall the witness of the complainant for cross-examination. The learned advocate submits that the learned trial Court has passed an order allowing the application on 20.10.2018 whereby, the direction was issued that after disclosing the defense, the recall of witness was permitted to be allowed. The learned advocate submits that though the specific order was passed by the learned trial Court to disclose the defense, after considering the various judgments of the Hon’ble Apex Court as well as the High Courts, no defense was disclosed and again, the application was moved by the respondent-accused below Exh.7 which was allowed in his favour. 8.1. The learned advocate submits that though the specific order was passed by the learned trial Court to disclose the defense, after considering the various judgments of the Hon’ble Apex Court as well as the High Courts, no defense was disclosed and again, the application was moved by the respondent-accused below Exh.7 which was allowed in his favour. 8.1. The learned advocate submits that as the complainant desirous to prefer the revision application against the aforesaid orders, the revision application was prepared however, the same could not be filed due to paucity of time and, therefore, on 01.07.2019, application was given seeking an adjournment on the ground that the order passed below Exh.7 is required to be challenged before the higher forum. The said application was rejected and the matter was kept at 2:30 and on the same day, the complaint came to be dismissed by exercising the power under Section 256 of the Code of Criminal Procedure. 9. The learned advocate submits that the defense is required to be disclosed as per the judgment rendered by the Hon’ble Apex Court in the case of M/s. Meters and Instruments Private Limited and Another vs. Kanchan Mehta, (2018) 1 SCC 560 and Rohitbhai Jivanlal Patel vs. State of Gujarat, AIR 2019 SC 1876 . The learned advocate submits that relying on the aforesaid decisions, the learned trial Court has passed an order directing the accused to disclose the defense however, on the next date of hearing, without complying with the order, the application was moved below Exh.7 which was ordered in favour of the respondent-accused. The learned advocate submits that if the complainant wants to challenge that order by way of filing revision application, the learned trial Court ought to have granted the time however, by rejecting the same, the matter was kept at 2:30 and in the second session, the complaint came to be dismissed. 10. The learned advocate submits that though in the impugned order, it was observed by the learned trial Court that the submission of the learned advocate is not to be appreciated but, due to dismissal of the complaint, the complainant was left remediless. The learned advocate submits that the complainant having the genuine case, has been suffered because of the impugned order. The learned advocate further submits that the real test in the matters of Negotiable Instruments Act is always good faith. The learned advocate submits that the complainant having the genuine case, has been suffered because of the impugned order. The learned advocate further submits that the real test in the matters of Negotiable Instruments Act is always good faith. If in a good faith, the time was sought to prefer a revision application before the higher forum, instead of dismissing the complaint, the learned trial Court could have granted one opportunity to the complainant. By submitting the same, the learned advocate prays to quash the impugned order and order to restore the criminal case to its original file by directing the learned trial Court to decide the case on its own merits. 11. On the other hand, learned advocate Mr. Adil Mirza submits that though the accused had disclosed the defense in application filed below Exh.7, the complainant did not remain present for cross-examination despite the direction issued by the learned trial Court. The learned advocate submits that not only one occasion but, earlier also on many occasions, the complainant remained absent and because of the same, the trial could not be concluded. The learned advocate submits that because of the adamant approach of the complainant’s advocate, the learned trial Court has rightly dismissed the complaint by observing that the submission was made by the learned advocate for the complainant that the proceedings were conducted on the gunpoint. The learned advocate submits that this type of conduct cannot be tolerated, therefore, the judgment and order of acquittal, by dismissing the complaint, was passed by the learned trial Court. The learned advocate further submits that it is the duty of the complainant to co-operate with the trial after setting the criminal law in motion and in failing to do so, the learned trial Court has rightly dismissed the complaint and, therefore, the learned advocate prays not to interfere with the impugned judgment and order and to dismiss the appeals. 12. Considering the submissions advanced by the learned advocates for the respective parties and before going into the merits, the provisions under which, the impugned order is passed, is required to be re-looked. Section 256 of the Code of Criminal Procedure is reproduced herein-below: “256. 12. Considering the submissions advanced by the learned advocates for the respective parties and before going into the merits, the provisions under which, the impugned order is passed, is required to be re-looked. Section 256 of the Code of Criminal Procedure is reproduced herein-below: “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, 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-section (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death.” 13. That two constraints are imposed on the Court for exercising the powers under Section 256 of the Code of Criminal Procedure. First is if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the respondent-accused. Second is when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has power to dispense with the attendance and 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 power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 14. Keeping in mind the above provisions and the settled law, if now, this case is to be examined, from the record, it transpires that on appearance of the accused, plea was recorded wherein, it was pleaded to be innocent and claimed to be tried. 14. Keeping in mind the above provisions and the settled law, if now, this case is to be examined, from the record, it transpires that on appearance of the accused, plea was recorded wherein, it was pleaded to be innocent and claimed to be tried. There was no any defense which was disclosed at the time of recording of the plea. The application moved by the accused, seeking recall of the witness of the complainant was allowed on the condition that on disclosing the defense, the complainant be permitted to recall. That order was passed on 20.10.2018. Again, the application was filed by the respondent-accused to recall the complainant below Exh.7 wherein, he disclosed that how the transaction was carried out and how the relation of the debtor and creditor was established, is to be proved during the cross-examination and, therefore, the complainant be ordered to remain present. The said application was filed on 16.05.2019 below Exh.7. On the said application, the order was passed by the learned trial Court on 30.05.2019, directing the complainant to remain present on the next date of hearing i.e. on 01.07.2019. On that day, application was filed below Exh.8 seeking time to file revision application challenging the order passed below Exh.7, which was rejected on the same date and the complainant was ordered to remain present in the second session. Again, the application was moved in the second session below Exh.9, requesting for time on the ground of challenging the order passed below exhs.7 and 8 which was also rejected and the complaint came to be dismissed under Section 256 of the Code of Criminal Procedure. The learned trial Court had observed in the impugned order that the conduct of the advocate of the complainant is not proper as he submitted that the learned trial Court is trying to conduct the proceedings on gunpoint. This conduct cannot be certainly tolerated but, because of the adamant approach or adamant behaviour of the advocate of the complainant, the genuine case of the complainant cannot be allowed to suffer. Even, the application which was moved by the learned advocate for the complainant cannot be said to be unreasonable as, by challenging the order passed below Exh.7, he can avail the remedy and denying the same, the matter was fixed in the second session and in the second session, the complaint came to be dismissed. 15. Even, the application which was moved by the learned advocate for the complainant cannot be said to be unreasonable as, by challenging the order passed below Exh.7, he can avail the remedy and denying the same, the matter was fixed in the second session and in the second session, the complaint came to be dismissed. 15. From perusing the Record and Proceedings, it transpires that there was no any entry made in the Record and Proceedings with regard to the proceedings conducted on each and every date. In a casual manner, the Record and Proceedings appear to have been maintained. From the entry of some dates, it transpires that the presence of the advocate and the accused is recorded however, the presence or absence of the complainant is not recorded and thereafter, on the opposite side, various dates are mentioned. There is no any order reflected from the Record and Proceedings passed on 20.10.2018 whereby, the application of the accused to recall the complainant came to be allowed on condition to disclose the defense. From the record, it transpires that after the order was passed, directing the complainant to remain present on the next date i.e. on 01.07.2019, the complaint came to be dismissed. 16. Considering the overall circumstances, this Court is of the view that the principle of natural justice requires to be followed by giving due opportunity to the parties to adduce or produce their respective evidence before the Court and the matter is required to be decided on its own merits. 17. By dismissing the complaint and by not permitting the complainant to file revision application before the higher forum, the learned trial Court has committed grave error and, therefore, this Court is of the view that the complaint is required to be restored to its original file and the same is required to be decided on its own merits after giving due opportunity to both the parties to adduce their evidence. 18. In view thereof, these appeals are allowed. The impugned order is quashed and set aside. The complaint is ordered to be restored to its original file. As the complaint is pending since 2016, the learned trial Court is directed to conclude the proceedings as expeditiously as possible. 19. Needless to clarify that both the parties shall co-operate with the trial and would see that the case is concluded without any further delay. The complaint is ordered to be restored to its original file. As the complaint is pending since 2016, the learned trial Court is directed to conclude the proceedings as expeditiously as possible. 19. Needless to clarify that both the parties shall co-operate with the trial and would see that the case is concluded without any further delay. On restoring the complaint to its original file, the learned trial Court is directed to issue summons to both the parties so that, their presence can be secured. 20. Record and Proceedings be sent back to the concerned learned trial Court.