JUDGMENT : M. K. Thakker, J. R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5634 of 2023 As this Court is deciding the main matter on merits, the leave is granted to prefer an appeal and this application is disposed of accordingly. R/CRIMINAL APPEAL NO. 781 of 2023 1. With the consent of parties, matter is taken up for final hearing. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order passed by the learned 3rd Additional Chief Judicial Magistrate, Vadodara below Exh. 1 in Old Criminal Case No.3707 of 2006 which was renumbered as Criminal Case No.41643 of 2006 dated 22.10.2021 dismissing the complaint for non-prosecution by exercising the powers under Section 256 of the Code of Criminal Procedure, 1973. 2. It is the case of the complainant that the complainant is having the factory of manufacturing plastic granules. The complainant is doing the job work and the accused was visiting the factory of the complainant for doing the job work of the plastic granules. It is the case of the complainant that for the payment on the job work, cheque bearing Cheque No.656624 dated 13.3.2006 for the amount of Rs.24,080/- and Cheque No.361506 dated 23.6.2006 for the amount of Rs.20,19,146/-was issued. On depositing the said cheque with the bank, it was returned with the endorsement of ‘insufficient fund’ on 12.9.2006. After following the procedure prescribed under the Negotiable Instruments Act, 1881, a private complaint was filed before the competent court being Criminal Case No.41643 of 2006. After recording the verification, the learned trial Court had issued the process under Section 204 of the Code of Criminal Procedure, 1973 vide order dated 12.12.2006. The accused appeared and his plea was recorded on 20.9.2007 and thereafter further statement was recorded on 20.10.2010. It was pleaded by the accused that the payment of disputed cheque has already been made and false case is filed. The accused was examined and his cross-examination was also conducted. Thereafter, the application below Exh. 73 was filed to send the cheque before the handwriting expert for verification. The said application was allowed on 23.6.2016 with condition that the accused would deposit the costs of Rs.20,000/-. Initially, the specimen was sent below Mark 58/7 to 58/15. Thereafter, the handwriting expert authority wrote a letter on 23.6.2017 below Exh. 97 informing to send again the specimen in a proper format. The said application was allowed on 23.6.2016 with condition that the accused would deposit the costs of Rs.20,000/-. Initially, the specimen was sent below Mark 58/7 to 58/15. Thereafter, the handwriting expert authority wrote a letter on 23.6.2017 below Exh. 97 informing to send again the specimen in a proper format. Therefore, the order was passed below Exh. 100 on 23.10.2019 to send 36 other specimen to the handwriting expert. Thereafter, the matter was adjourned for 27 times, but the complainant remained failed in appearing before the court and providing the specimen. It is the further case of the complainant that the application was filed below Exh. 115 by the respondent-accused to dismiss the matter on the ground of non-prosecution on the ground that neither the complainant is complying with the order passed by the learned trial Court dated 23.6.2016 and 23.10.2019 nor the complainant is remaining present. Thereafter, the learned advocate for the complainant had filed purshis below Exh. 116 stating that he did not want to continue as an advocate of the complainant and for that, he had also issued notice to the complainant. It transpires from the record that the complainant thereafter had engaged another advocate and the advocate was appeared on 7.10.2021 and filed Vakalatnama below Exh. 117 and on the day when the impugned order was passed, neither learned advocate nor complainant remained present and therefore, the learned trial Court had dismissed the matter for non-prosecution by exercising powers under Section 256 of the Code of Criminal Procedure which is impugned before this Court. 3. Heard learned advocate Mr. Dhruv K. Dave for the applicant and learned advocate Mr. P.P. Majmudar for the respondent-accused. 4. Learned advocate Mr. Dave submits that lastly, the advocate for the complainant remained present on 7.10.2021. Thereafter, the matter was adjourned on 22.10.2021, however, on that day, neither the complainant nor his advocate could remain present. Learned advocate Mr. Dave submits that for the fault on the part of the advocate in not remaining present, the litigant should not suffer and as the cases pertaining to the Negotiable Instruments Act is a time-barred litigation, the complainant would be left remediless if the impugned order would not be quashed. By submitting the same, learned advocate Mr. Dave prays to quash the impugned order and further prays to restore the matter to its original file. 5. Learned advocate Mr. By submitting the same, learned advocate Mr. Dave prays to quash the impugned order and further prays to restore the matter to its original file. 5. Learned advocate Mr. Dave further submits that if this matter would be restored to its original file, then the complainant would cooperate with the trial and would see to it that the matter is concluded within a period of three months without any further delay. 6. On the other hand, learned advocate Mr. P.P. Majmudar for the respondent-accused submits that though twice order was passed by the learned trial Court to provide the specimen, the complainant neither remained present nor provided his signature. In absence of compliance of the orders, the learned trial Court had rightly dismissed the complaint by exercising powers under Section 256 of the Code of Criminal Procedure and therefore, it was prayed to dismiss the appeal. 7. Having noticed the rival submissions before I proceed further, it would be useful to notice the provisions of Section 256 of the Code of Criminal Procedure which are 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.” 7.1 Requirement under Section 256 of the Code of Criminal Procedure, 1973 is that: (I) summons must have been issued to the complainant (II) the Magistrate should be of opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other day, and (III) the date on which the order under Section 256 (1) of the Code of Criminal Procedure, 1973 can be passed is the day appointed for appearance of the accused or any day subsequent thereto which the hearing of the case has been adjourned. 8. On keeping in mind the above provision, now if the records and proceedings which are part of the appeal is to be examined then it transpires that the complaint came to be filed on 30.11.2006 and the summons came to be issued vide order dated 21.12.2006. Accused came to be appeared on 20.9.2007 and the further statement of the accused came to be recorded on 20.10.2010. In the further statement, accused pleaded that the cheque amount which is of Rs.24,080/- was already paid to the complainant, however, false case is filed. Accused had also prayed to send the disputed cheque to the Forensic Science Laboratory by filing the separate application below Exh. 73. The aforesaid application came to be allowed on 23.6.2016 and order was passed to send the cheque along with specimen of the complainant to the Forensic Science Laboratory on condition to deposit costs of Rs.20,000/-. Thereafter, the communication was received on 23.6.2017 below Exh. 97 from the Forensic Science Laboratory to send 36 specimen of the complainant in a proper format, so that it can compare with the handwriting of the cheque. Again the order was passed on 23.10.2019 below Exh. 100 directing the complainant to provide the further specimen, so that it can be sent to handwriting expert. As recorded earlier, around 27 adjournments were granted to the complainant to comply with the order dated 23.6.2016 and 23.10.2019, however, the complainant failed in remaining present before the learned trial Court and providing the specimen as demanded by the Forensic Science Laboratory. It transpires that as the complainant was remaining absent, therefore, the application below Exh. As recorded earlier, around 27 adjournments were granted to the complainant to comply with the order dated 23.6.2016 and 23.10.2019, however, the complainant failed in remaining present before the learned trial Court and providing the specimen as demanded by the Forensic Science Laboratory. It transpires that as the complainant was remaining absent, therefore, the application below Exh. 115 came to be filed by the respondent-accused praying to dismiss the complaint on the ground of non-prosecution or to issue non-bailable warrant against the complainant. On filing aforesaid application, the complainant appeared with another advocate and filed its Vakalatnama on 7.10.2021 below Exh. 117. Thereafter, the matter was adjourned on 22.10.2021. Again neither the complainant nor his advocate remained present on 22.10.2017, therefore, the learned trial Court has passed the impugned order dismissing the complaint and acquitting the respondent-accused from the charges. 9. It is true that party having fair case should not suffer because of his absence, but at the same time, dilatory tactics on the part of the complainant who set the criminal law in motion by filing the private complaint should be restricted. An accused who is forced to attend the court on all posting days can put harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. With a view to protect to the accused against such tactics of the complainant, the provision list Section 256 of the Code was added. 9.1 Commenting on the delay in the justice-delivery system, although in respect of the criminal trial, Krishna Iyer, J. in the case of Babu Singh v. State of U.P. (1978) 1 SCC 579 has observed in paragraph 4 as under:- “4. … Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.” 9.2 Then the Hon’ble Apex Court in the case of Ishwarlal Mali Rathod vs. Gopal & Ors. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.” 9.2 Then the Hon’ble Apex Court in the case of Ishwarlal Mali Rathod vs. Gopal & Ors. in Special Leave Petition (Civil) Nos.14117-14118 of 2021 observed that: “5.5 Today the judiciary and the justice delivery system is facing acute problem of delay which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting the timely justice it may shaken the trust and confidence of the litigants in the justice delivery system. Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law. We are also aware that whenever the trial courts refused to grant unnecessary adjournments many a times they are accused of being strict and they may face displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom Courts are meant and all efforts shall be made by the courts to provide timely justice to the litigants. ...” 9.3 The Hon’ble Apex Court in the case of S. Rama Krishna vs. S. Rami Reddy (Dead) by his Lrs. & Ors. ...” 9.3 The Hon’ble Apex Court in the case of S. Rama Krishna vs. S. Rami Reddy (Dead) by his Lrs. & Ors. (2008) 5 SCC 535 observed as under: “A. Criminal Procedure Code, 1973 – Ss. 256(1) and 378(1) – Ingredients of S. 256(1) – Acquittal of accused on non-appearance of complainant – Exercise of jurisdiction by Magistrate under S. 256(1) – Scope of – Conduct of the complainant significant – Interference of High Court under S. 378(1) in appeal against acquittal of accused recorded by Magistrate in exercise of discretion under S. 256(1) whether justified – Complaint filed against appellant for dishonour of cheque on 6.6.2001 – After death of complainant his heirs did not press their application for substitution – On 14 dates between 18.4.2005 to 23.1.2006 nobody represented the complainant – accused kept appearing on most dates – Noticing respondent heirs’ failure to attend court for a long time, Magistrate under S. 256 acquitted the appellant on 23.1.2006 – High Court in appeal under S. 378(1), despite finding that respondent heirs were not interested in getting the matter prosecuted, set aside the order of acquittal on ground that lis between the parties should be decided on merits and directed that respondents be given one more opportunity – Held, High Court in appeal against acquittal erred in interfering with the discretion exercised by Magistrate under S. 256(1)” 10. In view of the above discussion, the impugned order dated 22.10.2021 is legal and valid order and therefore, it should not be interfered by this Court when sufficient opportunities were provided to the complainant to provide his specimen and to proceed with the matter. Thus, no illegality and irregularity has been committed by the learned Magistrate in passing the impugned order. 11. For the aforesaid reasons, the present appeal is dismissed. Record & Proceedings be sent back to the concerned court forthwith.