JUDGMENT : 1. Since the issue raised in the these appeals are similar, they are being decided by a common judgment. The facts of Criminal Appeal No.352 of 2024 are taken for the purpose of adjudication. 2. Endorsement on the cause list shows that Rule which was issued in the application for seeking leave to prefer an appeal was served on 19.01.2024, however, the respondent has chosen not to appear before the Court. 3. These appeals are filed challenging the impugned judgment and order of the acquittal dated 09.12.2023 passed by the learned trial Court in Criminal Case No.3716 of 2022 acquitting the respondent-accused under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the powers under Section 256 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter). 4. It is the case of the complainant that the complainant is doing the business of Control Penal and the respondent-accused is doing the business of selling milk and paneer. The respondent-accused had purchased the electric equipment from the complainant and for the payment of the same, 11 cheques for the amount of Rs.15,000/was issued in favour of the complainant. On depositing the same, the cheques were returned with an endorsement of ‘insufficient fund’ therefore, after following the procedure prescribed under the Act, complaint for the offence punishable under Section 138 of the N.I.Act was filed before the Competent Court. Four complaints were filed by the complainant before the competent Court. Details of complaints are reproduced hereinbelow: Criminal Case Cheque Numbers Cheque Amount (Rs.) 3716 of 2022 014979-014980 3,50,000/- 1599 of 2022 028560-028570 3,40,000/- 1600 of 2022 028560-028570 3,40,000/- 4.1. Thereafter, from the rojkaam it transpires that on 20.07.2022 verification was recorded and summons came to be issued, making it returnable on 07.10.2022. Thereafter, from the rojkaam, it further transpires that plea of the accused was recorded on 10.05.2023 and case was kept for the cross examination of the complainant. Rojkaam does not reflect the absence or present of the complainant’s advocate or the complainant neither any reasons for adjournments are stated, however, on 09.12.2023 complaint came to be dismissed in the absence of the advocate of the complainant by exercising the power under Section 256 of the Cr.P.C., which is impugned before this Court. 5. Rojkaam does not reflect the absence or present of the complainant’s advocate or the complainant neither any reasons for adjournments are stated, however, on 09.12.2023 complaint came to be dismissed in the absence of the advocate of the complainant by exercising the power under Section 256 of the Cr.P.C., which is impugned before this Court. 5. Heard the learned advocate Mr.Paresh Darji for the appellant and though the Rule was issued in the application for seeking leave to prefer an appeal, the respondent-accused did not appear either through an advocate or inperson. 6. Learned advocate Mr.Paresh Darji for the appellant submits that almost on all occasions learned advocate for the complainant remained present and on some of the occasions complainant did not remain present, however, the case was adjourned not only because his absence, but because of the absence of the advocate of the accused as well as the accused. Learned advocate Mr.Darji submits that from 02.12.2023 to 10.12.2023 as he was out of India and therefore, he could not remain present before the learned trial Court. 6.1. Learned advocate Mr.Darji submits that though he instructed the learned advocate, however, due to some miscommunication, the learned advocate for the complainant also not remained present on the day when the impugned judgment passed and complaint came to be dismissed. Learned advocate Mr.Darji submits that it is true that the case is pending since 2022, but on perusing the rojkaam, it does not transpire that the same was remain pending due to the absence of the complainant only. Learned advocate Mr.Desai submits that there was no any settlement arrived between the party, learned trial Court under the misconception of the fact recorded that though settlement is arrived, the complainant did not remain present and therefore, the complaint was dismissed. 6.2. Learned advocate Mr.Desai submits that there are different cheques, which were issued in favour of the complainant, which were dishonored and therefore, four complaints filed which were dismissed for non-prosecution. Learned advocate Mr.Desai submits that because of the absence of the learned advocate for the complainant the complaint though having the fair case has suffered and considering the time barred limitation, the complainant would be left remedy less if the complaint is not restored to its original file. 7. Considering the issue involve, Section 256 of the Cr.P.C. is required to be relooked which is reproduced hereinbelow: “256. 7. Considering the issue involve, Section 256 of the Cr.P.C. is required to be relooked 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, 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 non- appearance of the complainant is due to his death.” 8. 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. 9. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always complainant, who is at stake for his money which ought to have paid through the cheuqe. Unfortunately, the cheque in question was dishonored. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 9. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always complainant, who is at stake for his money which ought to have paid through the cheuqe. Unfortunately, the cheque in question was dishonored. Under such circumstances, a complaint should not have been dismissed immediately and Court ought to have adopted the course to adjourn the case for hearing to some other day under provision of Section 256 of the Cr.P.C. 10. From the rojkaam it transpires that, except one or two occasions the, no absence of the complainant was recorded, however, there was no any meticulous recording of the absence in the rojkaam of the advocate of the complainant or the complainant himself. It further transpires that twice the summons was issued on recording the verification of the complainant i.e. on 20.04.2022 and on 18.06.2022. The observation made by the learned trial court in the impugned order that as the settlement was arrived between the parties and therefore, the complainant did not remain present for withdrawing the complaint appears to be incorrect as there was no any record supporting that conclusion neither from the rojkaam. 11. This Court is of the view that due opportunity is required to be given to the parties to adduce and/or produce their respective evidence before the concerned Court and matter is required to be decided on merits instead of this technical dismissal. It transpires from the record that learned advocate for the complainant was also not remained present and as it was submitted by the learned advocate that the complainant was out of India therefore, the complainant could not remain present, and the said fact was not brought to the notice of the learned trial Court resulting the dismissal of the complaint. Therefore, appropriate cost is required to be imposed while allowing the present appeal. 12. Resultantly, this appeal is hereby allowed. The impugned judgments and order of acquittal dated 09.12.2023 passed by the learned 2nd Additional Chief Judicial Magistrate, Nadiad in Criminal Case Nos.3716, 1599, 1601 and 1600 of 2022 are quashed and set aside. The proceedings shall stand restored to their original number on the file of the learned Magistrate and prosecution shall now proceed from the stage when the order of the acquittal was passed. The proceedings shall stand restored to their original number on the file of the learned Magistrate and prosecution shall now proceed from the stage when the order of the acquittal was passed. The complainant is directed to deposit cost of Rs.15,000/before the Registry of this Court within a period of two weeks from the date of the order. The Registry shall disburse the same in the name of Shishu Gruh Paldi, by electronic mode. 13. It is needless to say that no any unnecessary adjournments would be sought for before the learned trial Court and both the parties would cooperate with the trial and to see that matter is concluded without any further delay.