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 acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Jamnagar in Criminal Case NO.4121 of 2018 dated 13.09.2023 whereby the learned trial Court has acquitted the respondent-accused from the charges punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the power under Section 256 of the Cr.P.C. 2. It is the case of the complainant that the complainant had lent the amount of Rs.35 Lakh to the respondent-accused to repay the said amount the cheque bearing No.741125 dated 04.04.2018 was issued in favour of the complainant for the amount of Rs.35 Lakh. 2.1. On depositing the said cheque, it was returned with an endorsement that ‘funds insufficient’ and therefore, after following the procedure prescribed under the N.I.Act, private complaint came to be filed before the learned Competent Court. On filing the complaint, the summons came to be issued on 06.06.2018 after recording the verification and thereafter plea came to be recorded of the accused on 29.11.2018. The accused pleaded not guilty and claimed to be tried therefore, the complainant was cross examined on 24.01.2020 and for production of certain documents the case came to be adjourned to 03.03.2020. Thereafter, the complainant, namely, Devkunwarben Nareshbhai Chavda expired on 02.05.2021 and the father of the complainant has filed an application below Exhibit 32 praying to implead him as a party in place of complainant in the complaint. The said application came to be rejected vide order dated 08.04.2022 on the ground that the said application is not supported by the affidavit. 2.2. Again, application below Exhibit 46 was preferred for substituting the complainant, which was allowed by the learned trial Court on 06.07.2022, however, thereafter the father of the complainant also passed away on 02.09.2022. Again, the appellant, who is the son of the complainant, namely, Devkunwarben Nareshbhai Chavda has filed an application below Exhibit 59 praying to implead as a complainant in place of Devkunwarben Nareshbhai Chavda, which was allowed by the learned trial Court on 28.07.2023 and thereafter the matter was kept on 13.09.2023. Again, the appellant, who is the son of the complainant, namely, Devkunwarben Nareshbhai Chavda has filed an application below Exhibit 59 praying to implead as a complainant in place of Devkunwarben Nareshbhai Chavda, which was allowed by the learned trial Court on 28.07.2023 and thereafter the matter was kept on 13.09.2023. On 13.09.2023 neither the appellant nor his advocate remained present, therefore, learned trial Court has dismissed the complaint by exercising the power under Section 256 of the Cr.P.C., which is impugned before this Court. 3. Heard the learned advocate Mr.Jaivik Bhatt for the appellant and learned advocate Mr.Viral Dave for the respondent-accused and learned APP Ms.Vrunda Shah for respondent-State. 4. Learned advocate Jaivik Bhatt submits that unfortunately the mother who is the original complainant expired during the midst of the cross examination and thereafter the father namely Nareshbhai Chavda was joined in place of complainant by order dated 06.07.2022 who also passed away on 02.09.2022. Thereafter, the application below Exhibit 59 was preferred which was allowed vide order dated 28.07.2023 but the learned advocate has communicated that unless and until you will be joined in place of complainant, the presence would not be required. 4.1. Learned advocate Mr.Bhatt submits that due to miscommunication on the part of the appellant and his advocate, the appellant could not remain present and the judgment and order of the acquittal was passed by the learned trial Court. Learned advocate Mr.Bhatt submits that it is true that the application for impleadment of the party is allowed on 28.07.2023 but no amendment was carried out on the same day and the matter was adjourned to 13.09.2023 when the judgment and order of acquittal was passed. 4.2. Learned advocate Mr.Bhatt submits that instead of dismissing the complaint, learned trial Court could have adjourned the matter for once as after passing the order allowing the application below Exhibit 59, only on one occasion the appellant could not remain present that also due to the miscommunication between the learned advocate and the appellant. 4.3. Learned advocate Mr.Bhatt further submits that because of the non-appearance the appellant was left remediless as the amount which is involved in the impugned complaint is of Rs.35 Lakh for which the cheque was issued, which was returned. 4.3. Learned advocate Mr.Bhatt further submits that because of the non-appearance the appellant was left remediless as the amount which is involved in the impugned complaint is of Rs.35 Lakh for which the cheque was issued, which was returned. Learned advocate Mr.Bhatt further submits that because of non-appearance the impugned judgment and order of acquittal was passed, therefore, the appellant is required to pay the cost which would be awarded by the Court. 4.4. Learned advocate Mr.Bhatt further submits that he would undertake that no unnecessary adjournment would be sought and the trial is concluded without further delay. 4.5. Learned advocate Mr.Bhatt with the above submissions prays that the judgment and order of acquittal which was passed on technical ground may quash and set aside and the criminal case be ordered to restore to its original file. 5.On the other hand, learned advocate Mr.Viral Dave for the respondent-accused submits that though sufficient opportunity was provided by the learned trial Court to amend the complaint, the present appellant fails to comply with the order passed by the learned trial Court and therefore, the learned trial Court has rightly exercised the power dismissing the complaint for non-prosecution. 5.1. Learned advocate Mr.Dave further submits that criminal case is pending since 2018 and because of non-appearance on the part of the present appellant as well as on earlier occasion though the order was passed by the learned trial Court to implead the father in place of the complainant, the same was not complied and amendment was also not carried out, therefore, the learned trial Court has rightly exercised the power and dismissed the complaint. 5.2. Learned advocate Mr.Dave submits that in view of above, no interference is required and the appeal is prayed to dismiss confirming the order passed by the learned trial Court. 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. 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 non-appearance 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 rojkaam, which is part of the appeal, it transpires that the learned trial Court while allowing the application below Exhibit 59 adjourned the matter on 13.09.2023 and on that day the judgment and order of acquittal was passed. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 8.Considering the rojkaam, which is part of the appeal, it transpires that the learned trial Court while allowing the application below Exhibit 59 adjourned the matter on 13.09.2023 and on that day the judgment and order of acquittal was passed. As submitted by the learned advocate for the appellant, it transpires from the record that in the midst of the cross examination, the case was adjourned for the purpose of production of certain documents and during that period, the original complainant, namely, Devkunwarben Nareshbhai Chavda passed away on 02.05.2021. Thereafter, father of the present appellant, namely, Nareshbhai Chavda has filed an application praying to join him as a party in the complaint in place of the complainant. On 08.06.2021, the application was allowed by the learned trial Court and before the amendment was carried out, the father of the appellant, namely, Nareshbhai also passed away on 02.09.2022. 8.1. Again the appellant, who is the son of the original complainant, namely, Devkunwarben Nareshbhai Chavda has filed application for substituting the complainant below Exhibit 59, which was allowed by the learned trial Court on 28.07.2023. After allowing the application, the matter was kept on 13.09.2023 when the impugned judgment and order of acquittal was passed. 9.It is true that the case is pending since 2018, however, due to unfortunate death of the parents of the appellant, the cross examination could not be completed and the case was adjourned for one or another reasons during this period. The learned trial Court after allowing the application for impleadment below Exhibit 59 has adjourned the case on 13.09.2023, however as stated by the learned advocate for the appellant, due to miscommunication on the part of the appellant and his advocate, the appellant could not remain present and the complaint was dismissed. 10. In the case relating to Section 138 of the N.I.Act, it is always the complainant who is at stake for his money, which ought to have been paid by the respondent-accused through the cheque and unfortunately the cheque in question was dishonoured. 10. In the case relating to Section 138 of the N.I.Act, it is always the complainant who is at stake for his money, which ought to have been paid by the respondent-accused through the cheque and unfortunately the cheque in question was dishonoured. Under such circumstances, the complaint should not have been dismissed immediately and the Court ought to have adopted the course either to adjourn the proceedings for some other day under the provisions of Section 256 of the Cr.P.C. or to grant exemption to the complainant on a particular date for his non-appearance. 11. It is true that the learned advocate for the complainant was also not present, but because of not remaining present of learned advocate for the complainant, fair case of the complainant should not have suffered. 12. This Court is of the view that instead of dismissing the complaint, learned trial Court could have adjourned the case and could have provided one more opportunity to the learned advocate and complainant to amend the complaint as well as to lead their evidence. 13. In view of above, this Court deems it fit to quash the impugned judgment and order of acquittal and order to restore the criminal case to its original file. However, due to not remaining present of the complainant, the respondent-accused has to appear before this Court by engaging an advocate, therefore, appropriate cost i.e the amount of Rs.15,000/-is required to be awarded. 14. Resultantly, this appeal is allowed. The impugned judgment and order of the acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Jamnagar in Criminal Case NO.4121 of 2018 dated 13.09.2023 acquitting the respondent for the charges punishable under Section 138 of the Negotiable Instruments Act, 1886 is quashed and set aside. The proceeding shall stand restored to its 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 and on depositing the same, the Registry shall disburse the same in the name of respondent No.2 after due verification. 15. Record and proceedings be sent back to the concerned Court, forthwith.