JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the judgment and order of the dismissal passed by the learned 4th Additional Judicial Magistrate First Class, Deesa in Criminal Case No.2404 of 2021 acquitting the respondent-accused from the charges under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ hereinafter). 2. It is the case of the complainant that the complainant is the finance company, who had given the finance on the vehicle to the respondent-accused and towards the payment of the amount, the cheque bearing No.586771 of Rs.1,50,000/and cheque No.586772 of Rs.2,19,000/was issued in favour of the complainant-company. On depositing both the cheques with the Bank, they were returned with an endorsement of ‘fund insufficient’. Therefore, after following the procedure prescribed under the Act, the private complaint came to be filed under Section 138 of the N.I.Act. 3. On recording the verification, learned trial Court has issued the summons, making it returnable on 23.07.2021 thereafter time to time, the matter was adjourned. On issuing the Bailable/Non-Bailable Warrants, the same remained unserved up to the date when the impugned order was passed. On 23.12.2022 the learned trial Court has observed that Exhibits 5 to 8 are remained unserved as the accused is staying at Mumbai and his new address was not provided by the complainant and therefore, by exercising the power under Section 256 of the Cr.P.C. the complaint came to be dismissed for non-prosecution, which is impugned before this Court. 4. Heard the learned advocate Mr.M.J.Patel for the complainant and though endorsement on the cause list shows that Rule is served in the application for seeking leave to prefer an appeal and as per the remarks notice is received by his brother, no one appears either inperson or through an advocate to oppose this appeal. 5. 4. Heard the learned advocate Mr.M.J.Patel for the complainant and though endorsement on the cause list shows that Rule is served in the application for seeking leave to prefer an appeal and as per the remarks notice is received by his brother, no one appears either inperson or through an advocate to oppose this appeal. 5. Learned advocate Mr.M.J.Patel submits that with regard to the service of summons, the statement of the brother was recorded which is part of the record and proceedings wherein the brother, namely, Kesarbhai Lilabhai Sobod has stated that his elder brother, namely Mukeshbhai Lilabhai Sobod is at present staying in Mumbai, Maharashra and his address is not in the knowledge, However, he stated in his statement dated 24.10.2022 that he would inform to the accused with regard to the proceedings and he would ask to remain present before the learned trial Court. 5.1. Learned advocate Mr.Patel submits that almost on all occasions, the learned advocate for the complainant as well as the complainant remained present, however, on the day when the impugned order is passed i.e. on 23.12.2022 due to miscommunication, he could not remain present and due to absence and non-furnishing the fresh address, the complaint came to be dismissed. 5.2. Learned advocate Mr.Patel submits that the respondent No.2 had availed the financial facility and after availing the facility, he did not repay the amount of loan therefore, disputed cheque which was given was sent for the encashment and the same was returned with the memo having the endorsement of ‘in sufficient fund’. 5.3. Learned advocate Mr.Patel submits that as the complainant-company was in process of getting the fresh address and therefore, the adjournment was sought on 23.11.2022 which was granted and the matter was adjourned on 23.12.2024. On that day, Non-Bailable warrant was issued against the respondent-accused, which was remained unserved with an endorsement that the respondent No.2 is at Mumbai and thereafter, the matter was adjourned on 23.12.2022 on the day when the impugned order was passed. 5.4. Learned advocate Mr.Patel submits that due opportunity was required to be given to the complainant to provide the fresh address as the complainant, who is finance company and money which is involved was of a public money therefore, on dismissing the complaint, the complainant would be left remedy less, in view of the time barred litigation. 5.4. Learned advocate Mr.Patel submits that due opportunity was required to be given to the complainant to provide the fresh address as the complainant, who is finance company and money which is involved was of a public money therefore, on dismissing the complaint, the complainant would be left remedy less, in view of the time barred litigation. Therefore, the learned advocate Mr.Patel prays to set aside the impugned order and to restore the complaint to its original file. 6. 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 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. 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. On perusing the rojkaam, it transpires that the Non-Bailable Warrant which was issued against the respondent No.2 was returned with an endorsement that respondent No.2 has shifted to Mumbai that was the endorsement of 23.12.2022 and thereafter the matter was dismissed for non-prosecution without giving the opportunity to the complainant to provide fresh address of the respondent. It further transpires from the record that statement of the brother which was recorded on 24.10.2022 reveals that brother was in knowledge of the proceeding, which is pending and the statement was recorded with regard that as and when he would be in a contact with the respondent No.2, he would be asked to remain present before the learned trial Court. This statement was recorded on 24.10.2022. Thereafter, further statement was recorded on 04.11.2022 reiterating the same fact. It transpires that neither brother has disclosed the address of the respondent No.2 nor his contact number therefore, in absence of the same time was sought by the complainant to have the fresh address of the respondent No.2. 9. From the record, it further transpires that almost on all occasions, except on the day when the impugned order was passed complainant and his advocate remained present and on single default, the impugned order was passed by the learned trial Court. 10. Proceedings under Section 138 of the N.I.Act though criminal in nature do not really signify the criminal intact and flow from the act, the basic object and purpose of which is to harness the violaters of the transaction arising from Mercantile Law and to ensure the necessary commitment clause from their obligation and make them liable for criminal prosecution to achieve the aforesaid object. The exercise of the discretion under Section 256 of the Cr.P.C. has to be made fairly and judicially without impairing the cause of the administration of the criminal justice. 11. From the record it transpires that, no opportunity was given to the complainant to furnish the fresh address of the respondent No.2. Complainant, who is the finance company, had given the finance loan to the respondent No.2 and after availing the facility, respondent No.2 had committed default and the cheque which was issued was dishonored. In view of this, instead of taking this technical view, learned trial Court ought to have given the fair opportunity to the complainant to provide the fresh address and to lead the evidence and thereafter, learned trial Court ought to have decided the case on merits. 12. In view of the same, this Court is of the view that impugned order deserves to be set aside the criminal case is required to be restored to its original file. 13. Resultantly, this appeal is allowed. The impugned judgment and order of the dismissal passed by the learned 4th Additional Judicial Magistrate First Class, Deesa in Criminal Case No.2404 of 2021 acquitting the respondent-accused from the charges under Section 138 of the Negotiable Instruments Act, 1886 is quashed and set aside. 14. Record and proceedings be sent back to the concerned Court, forthwith.