JUDGMENT : 1. Though Rule is served in the application for seeking leave to prefer an appeal, as per the report filed by the Registry, it was served on 10.01.2024, no one has appeared either in person or through an advocate. Hence, this appeal was heard in absence of the respondent-accused. 2. Present appeal is filed by the appellant-original complainant challenging the judgment and order dated 13.10.2023 passed by the learned 10th Additional Civil Judge and Judicial Magistrate First Class, Surat in Criminal Case No.52555 of 2022, whereby the accused were acquitted from the charges punishable under Section 138 of the Negotiable Instruments Act, 1886. 3. Facts of the present case are mentioned hereinbelow: 3.1. It is the case of the complainant that the complainant is doing the business in the name and style of Ridhan Fashion Private Limited and the respondents-accused are the proprietor of Pooja Collection. The complainant had sold the fabric material to the accused and for the payment of the goods, three cheques totaling the amount of Rs.1,35,126/was issued in favour of the complainant. On depositing the said cheuqes, the cheques were returned with an endorsement ‘payment stop by borrower’. Therefore, after following the due procedure prescribed under the N.I.Act, private complaint came to be filed before the competent court. 3.2. After recording the verification, summons came to be issued under Section 204 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) to the accused vide order dated 02.09.2022 which was remained unserved till the date of passing of the impugned order. On the day when the impugned order was passed, learned trial Court has observed that the matter has been pending at the stage of process to accused. However, complainant or his advocate consistently remained absent for five days i.e. on 27.04.2023, 08.06.2023, 20.07.2023, 04.09.2023 and the date on which the impugned order was passed i.e. on 13.10.2023. Learned trial Court by exercising the power under Section 256 of the Cr.P.C. had dismissed the complaint for non-prosecution due to absence of the complainant and his advocate, which is impugned before this Court. 4. Heard the learned advocate Mr.Hardik Dave for the appellant-original complainant and as observed earlier no one has appeared though Notice was issued in the application for seeking leave to prefer an appeal. 5. 4. Heard the learned advocate Mr.Hardik Dave for the appellant-original complainant and as observed earlier no one has appeared though Notice was issued in the application for seeking leave to prefer an appeal. 5. Learned advocate Mr.Hardik Dave for the appellant submits that initially the summons was issued by the learned trial Court thereafter, for the reissuance of the summons, the matter came to be adjourned time to time. Lastly, advocate of the complainant remained present on 05.11.2023. Thereafter, on three occasions learned trial Court either on training or was on leave and therefore, the miscommunication on the part of the learned advocate and the complainant, the complainant could not remain present for four occasion. 5.1. Learned advocate Mr.Dave submits that though the complainant was not remained present, but at the same time, stage of the trial was for the reissuance of the summons to the accused therefore, instead of dismissing the complaint, learned trial Court ought to have issued the summons or warrant to the accused and could have dispensed the presence of the complainant. However, learned trial Court has passed the impugned judgment and order of acquittal and therefore, the learned advocate has prayed to set aside the impugned order and order to restore the original criminal case to its file. 6. Considering the submissions advanced by the learned advocate for the appellant and before going into the merits, the provisions under which, the impugned order is passed, is required to be relooked. 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.” 7. 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. 8. Considering the above provisions of law as well as considering the record and provisions which are part of the appeal, it transpires that the summons came to be issued vide order dated 02.09.2022 thereafter, the matter came to be adjourned on 29.09.2022 where the complainant or his advocate remained absent. 8.1. Again, the case was adjourned on 05.11.2022 where the presence of the complainant’s advocate was recorded and the case was adjourned for reissuance of the summons on the application preferred by the complainant below Exhibit 6. The matter came to be adjourned on 14.12.2022 where the trial Court was on leave. Again, on 14.12.2022 the learned trial Court was on training, on 27.01.2023 learned trial Court was on leave and on 14.03.2023 the same position where the learned trial Court was on leave. Thereafter, the absence of the complainant and his advocate was recorded on 27.04.2023, 08.06.2023, 20.07.2023, 04.09.2023. On 30.10.2023 again the complainant and his advocate remained absent therefore, the learned trial Court has passed an impugned order by exercising the power under Section 256 of the Cr.P.C. 9. The prosecution of a private complaint for an offence under Section 138 of the N.I.Act is different from the prosecution of the complainant in respect of the offences punishable under the Indian Penal Code. The prosecution of a private complaint for an offence under Section 138 of the N.I.Act is different from the prosecution of the complainant in respect of the offences punishable under the Indian Penal Code. For an offence under Section 138 of the N.I.Act, there is no remedy available for the complainant when the complaint was dismissed for default in view of the limitation prescribed. 10. Considering the record, it transpires that the stage of the trial was for reissuance of the summons and to secure the presence of the accused before the trial Court, the learned trial Court instead of exercising the power under Section 256 of the Cr.P.C. dismissing the complaint and ought to have adopted the course available in the Code by adjourning the case and could have dispensed with the presence of the complainant or could have issued the warrant/summons to the accused. 11. In the proceedings under the N.I.Act, the complainant would be always at the stake for his money, which ought to have paid through the cheuqe and 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 either to adjourn the case for hearing to some other day or could have issued the warrant to the accused to secure his presence under provision of Section 256 of the Cr.P.C. Instead of this technical dismissal, learned trial Court could have decided the case on merits after giving due opportunities to both the parties to lead their evidence. 12. In view of above, this Court is of the view that the impugned order is required to be set aside and the complaint is required to be restored to its original file. However, at the same time, the complainant remained absent for four consecutive dates, therefore, appropriate cost is also required to be imposed while allowing this appeal. 13. Resultantly, this appeal is allowed. The impugned judgment and order dated 13.10.2023 passed by the learned 10th Additional Civil Judge and Judicial Magistrate First Class, Surat in Criminal Case No.52555 of 2022. 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 impugned judgment and order dated 13.10.2023 passed by the learned 10th Additional Civil Judge and Judicial Magistrate First Class, Surat in Criminal Case No.52555 of 2022. 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.10,000/before the Registry of this Court within a period of two weeks from the date of the order and on depositing the same, the Registry shall disburse the same in the account of Shishu Gruh Paldi, by electronic mode. 14. 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.