JUDGMENT : 1.This appeal is filed under Section 378 of the Code of Criminal procedure, 1973 ('the Cr.P.C.' hereinafter) challenging the judgment and order dated 20.12.2023 passed by the learned Chief Judicial Magistrate, Sabarkantha, Himmatnagar below Exhibit 1 in Criminal Case No.7692 of 2021 filed under Section 138 of the Negotiable Instruments Act, 1886 ('the N.I.Act' hereinafter). 2. It is the case of the complainant that complainant is running the firm in the name and style of Gurukrupa Steal Trading Corporation and the accused is doing the business in the name and style of Akshar Construction. The accused had purchased the goods, namely, Brass and Iron from the firm of the complainant and to pay the aforesaid bill amount, the cheque bearing No.030164 for the amount of Rs.1,80,361/- in favour of the complainant was issued. 2.1. On depositing the cheque before the Bank, it was dishonored with an endorsement of 'funds insufficient' and therefore, after following the due procedure prescribed under the N.I.Act the complaint came to be filed. Learned trial Court after recording the verification has issued the summons on 11.05.2021, however, the summons could not be served upon the respondent-accused and the criminal case came to be adjourned from time to time at the stage of providing the fresh address of the respondent-accused. 2.2. On 20.12.2023 learned trial Court after recording the absence of the complainant and his advocate has observed that after 06.10.2022 as per the record, complainant and his advocate did not remain present and therefore, complaint came to be dismissed by exercising the power under Section 256 of the Cr.P.C., which is subject matter of the challenge. 3. Heard the learned advocate Mr.Vaibhav Sheth for the appellant and though Rule is served in the application for seeking leave to prefer an appeal to the respondent-accused and the statement was recorded by the ASI 'A' Division Police Station, Himmatnagar stating that he would remain present before the Court on the date of hearing i.e. on 29.02.2024, however, thereafter though the matter was adjourned, no one has appeared either in-person or through an advocate. 4.Learned advocate Mr.Sheth submits that it is true that on some occasions the complainant and his advocate remained absent, but as fresh address was not available with the learned advocate for the complainant, the same could not be provided and the presence could not be secured before the learned trial Court. 4.Learned advocate Mr.Sheth submits that it is true that on some occasions the complainant and his advocate remained absent, but as fresh address was not available with the learned advocate for the complainant, the same could not be provided and the presence could not be secured before the learned trial Court. Learned advocate Mr.Sheth submits that now the fresh address has already been provided by the complainant and on the said address Rule which was issued by this Court has been served, therefore same would be provided with the learned trial Court if this matter would be restored to its original file. 4.1. Learned advocate Mr.Sheth submits that due to non-remaining present of the learned advocate for the complainant, fair case of the complainant is suffered because of the dismissal of the complaint and as these proceedings under Section 138 of the N.I.Act are time barred litigation, the complainant would be left remediless in event, this impugned judgment and order is quashed. 4.2. Learned advocate Mr.Sheth submits that as this case is pending since 2021 and due to non-furnishing the address, the presence could not be secured of the respondent-accused, the complainant would pay the amount of cost whatever is decided by this Court. Learned advocate Mr.Sheth submits that he would undertake that no further adjournment would be sought unnecessary and the criminal case is concluded without any further delay. On making these submissions, learned advocate Mr.Sheth prays to quash the impugned judgment and order of the acquittal and also prays the order to restore the criminal case to its original file. 5.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. 5.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.” 6.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. 7.From the record and proceedings, which are part of this appeal it transpires that, on various occasions neither the complainant nor his advocate remained present. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 7.From the record and proceedings, which are part of this appeal it transpires that, on various occasions neither the complainant nor his advocate remained present. It is true that at the stage of summons or warrant, the presence of complainant would not be required, but at the same time learned advocate could have remained present before the learned trial Court and could have provided the fresh address. As it was submitted by the learned advocate Mr.Sheth that now fresh address is received and on the said address Rule was served wherein the statement of the respondent No.2 is recorded by the police officer, this Court deems it fit to allow this appeal and quash the impugned judgment and order of acquittal. 8.Resultantly, this appeal is hereby allowed. The judgment and order dated 20.12.2023 passed by the learned Chief Judicial Magistrate, Sabarkantha at Himmatnagar below Exhibit 1 in Criminal Case No.7692 of 2021. 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. As this criminal case is pending since 2021 and the matter was adjourned time to time because of nonremaining present before the learned trial Court either complainant or his advocate, this Court deems it fit to impose the cost of Rs.20,000/- to the appellant and the appellant shall deposit the said amount with the Registry of this Court. In turn, the Registry shall remit in the account of the Shishu Gruh Paldi, by electronic mode. 9.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. 10. Direct service is permitted.