JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order dated 06.07.2023 passed by the learned Additional Civil Judge, Dabhoi in Criminal Case No.3749 of 2021 below Exhibit 1 whereby, the accused came to be acquitted from the charges under Section 138 of the Negotiable Instruments Act by exercising the power under Section 256 of the Code of Criminal Procedure. 2. The case of the appellant - original complainant is that the complainant is working as a contractor and given the hand loan of Rs.5,25,000/- in cash to the respondent – accused in the year 2019. On being demand of the said amount, the cheque bearing No.008878 for the amount of Rs.5,25,000/- was issued in favour of the complainant with an assurance that on depositing the said cheque, it would be encashed and the amount would be credited in the account of the complainant. 3. On depositing the said cheque, it was dishonored with return memo with an endorsement of ‘fund insufficient’ on 30.06.2021. Therefore, after following the procedure prescribed under the N.I. Act, the private complaint came to be filed before the competent Court for the offence punishable under Section 138 of the N.I. Act. The day when the impugned order was passed i.e. on 06.07.2023, learned advocate for the complainant was not present neither the complainant was present and as the stage of the trial was of cross-examination of the complainant, the learned trial Court has dismissed the complaint due to absence of the complainant and his advocate which is impugned before this Court. 4. Heard learned advocate Mr.Vedant Gaikwad for the appellant and learned advocate Mr.Hariom Raj for the respondent-accused. 5. Learned advocate submits that after the summons came to be issued, the application was filed by the learned advocate for interim compensation below Exhibit 8 which was remained undecided till the impugned order was passed. The learned advocate submits that in the rojkam, though on 03.12.2021 the learned advocate for the complainant had filed an application, the trial Court has observed that the complainant and his advocate were absent. The learned advocate submits that though the accused initially appeared on 03.12.2021, the vakalatnama on behalf of the advocate of the accused was filed below exh.11 on 18.04.2022 i.e. four months from the date of appearance before the learned trial Court. The learned advocate submits that though the accused initially appeared on 03.12.2021, the vakalatnama on behalf of the advocate of the accused was filed below exh.11 on 18.04.2022 i.e. four months from the date of appearance before the learned trial Court. Learned advocate submits that thereafter also, four adjournments were granted by the learned trial Court for recording the plea of the accused, which was ultimately recorded on 12.09.2022 below exh.13C. The learned advocate submits that only on two consecutive dates i.e. on 08.04.2023 and 16.06.2023, the complainant and his advocate remained absent due to miscommunication and the impugned judgment was passed by the learned trial Court on 06.07.2023. The learned advocate submits that the matter came to be adjourned for number of occasions for filing the vakalatnama of the advocate of the accused and for recording the plea of the accused however, only for not remaining present for two consecutive dates, the impugned order was passed dismissing the complaint for non-prosecution. 6. The learned advocate submits that in fact, the application exh.8 which was preferred on 03.12.2021, remained undecided till the impugned order was passed by the learned trial Court on 06.07.2023. The learned advocate submits that instead of exercising the power under Section 256 of the Code of Criminal Procedure dismissing the complaint, the learned trial Court ought to have decided the interim compensation application below exh.8 however, without adopting that course, the impugned judgment and order of acquittal was passed. The learned advocate submits that it is true that for two consecutive dates, the learned advocate for the complainant and the complainant remained absent and, therefore, appropriate cost which would be decided by the Court, would be deposited with the learned trial Court. The learned advocate submits that as this case is pending since 2021 and three years have already been passed, no any unnecessary adjournment would be sought and the trial would be concluded with the co-operation without any further delay. With this request, the learned advocate prays to set aside the impugned order of acquittal and order to restore the criminal case to its original file. 7. On the other hand, learned advocate Mr.Hariom Raj submits that the though the complainant was represented by his pleader, neither his advocate nor the complainant remained present, therefore, the learned trial Court has rightly dismissed the complaint for non-prosecution. 7. On the other hand, learned advocate Mr.Hariom Raj submits that the though the complainant was represented by his pleader, neither his advocate nor the complainant remained present, therefore, the learned trial Court has rightly dismissed the complaint for non-prosecution. The learned advocate submits that on 08.04.2023 and 16.06.2023, neither the learned advocate for the complainant nor the complainant remained present, even before that also, as per the entry made in the rojkam, on 16.12.2022 also, the learned advocate and the complainant were not present. The learned advocate submits that the learned trial Court has rightly exercised the power conferred under Section 256 of the Code of Criminal Procedure dismissing the complaint and no interference is required and the appeal is required to be dismissed. 8. 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, are 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.” 9. 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. 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. 10. Considering the above legal position, if now, the merit is to be examined, then it comes on the record that the application exh.8 was given by the learned advocate for the complainant on 03.12.2021 and despite of that, in the rojkam, entry was made that neither the complainant nor his advocate remained present. On the same day, the application below exh.7 was also given by the accused for granting an adjournment. Thereafter, from time to time, the matter was adjourned for hearing of the application exh.8. Though from the rojkam, it transpires that the accused remained present on 03.12.2021, the advocate has filed his appearance on 18.04.2022 i.e. after two adjournments which were sought by the learned advocate for the accused. It is further required to be recorded that thereafter, the matter was adjourned on 10.05.2022, 23.06.2022, 02.08.2022 and 12.09.2022 however, the plea of the accused came to be recorded on 5th adjournment i.e. on 12.10.2022. It shows that the accused remained absent for these five consecutive dates and for that, the plea could not be recorded by the learned trial Court. 11. It is required to be noted from the rojkam that on 02.03.2023, the presence of the advocates of both the sides and both the parties were recorded and the matter was adjourned on 08.04.2023. On 08.04.2023, it was noted that the adjournment was sought by the accused for filing the reply of the application exh.8 and, therefore, the matter came to be adjourned to 16.06.2023 for filing the reply of application exh.8 as well as to cross-examine the complainant. On 08.04.2023, it was noted that the adjournment was sought by the accused for filing the reply of the application exh.8 and, therefore, the matter came to be adjourned to 16.06.2023 for filing the reply of application exh.8 as well as to cross-examine the complainant. On 16.06.2023, the complainant and his advocate remained absent. Thereafter, it was adjourned to 06.07.2023 however, on that day also, it appears that no any reply to application exh.8 was filed by the accused. Again on 06.07.2023, though there was no any reply filed by the accused for which the matter was adjourned, application exh.24 was filed by the accused praying to dismiss the complaint under Section 256 of the Code of Criminal Procedure. 12. From the above facts, it transpires that the application below exh.8 remained undecided and though the adjournment was sought on 08.04.2023 for filing the reply to application exh.8, the same was not filed and the complaint came to be dismissed on the application of the accused. The learned trial Court has committed an error in dismissing the complaint as the stage of the trial was for filing the reply of application exh.8 as well as for cross-examination of the complainant. It is true that on two occasions, the complainant and his advocate remained absent but, for that the proceedings which are pending were not stalled as the reply of application exh.8 was still awaited. 13. It should be the endeavor of the Court to render substantial justice to the parties and not to resort to the technicalities to defeat the substantial right of the person, who has knocked the door with an expectation that his grievance would be redressed. The proceedings under Section 138 of the Negotiable Instruments Act though criminal in nature, do not really signify the criminal intents and from the Act, the basic objected purpose of which, is to harness the violators of the transactions arising from mercantile law and to ensure that necessary commitment flows from their obligations make them liable for criminal prosecution to achieve the aforesaid objectives. 14. The learned trial Court has adopted the easy and convenient mode of disposing the complaint by exercising the power under Section 256 of the Code of Criminal Procedure for not remaining present on two consecutive dates. 14. The learned trial Court has adopted the easy and convenient mode of disposing the complaint by exercising the power under Section 256 of the Code of Criminal Procedure for not remaining present on two consecutive dates. The power under Section 256 has to be exercised fairly and judicially without impairing the cause of administration of the criminal justice which should be spelt out from the order passed by the learned trial Court. As it is submitted by the learned advocate that for not remaining present for two dates, the complainant would deposit the cost before the learned trial Court, this Court is of the view that the impugned judgment and order of acquittal is required to be set aside and the criminal case which is pending, is required to be decided on merits instead of the technical issues. 15. Resultantly, the . The judgment and order dated 06.07.2023 passed by the learned Additional Civil Judge, Dabhoi in Criminal Case No.3749 of 2021 below exh.1 is quashed and set aside and Criminal Case No.3749 of 2021 is ordered to be restored to its original file. The cost of Rs.10,000/- be deposited with the learned trial Court by the complainant within a period of two weeks which may be disbursed in favour of the respondent – accused after due verification. 16. Record and Proceedings be sent back to the concerned learned trial Court forthwith. Direct service is permitted.