JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the impugned judgment and order dated 03.01.2023 passed in Criminal Case no.1486 of 2021 by the learned Judicial Magistratre First Class, Harij, District Patan under Section 256 of the Cr.P.C. dismissing the complaint on the ground of non-prosecution and acquitting the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter). 2. It is the case of the complainant that the complainant and the accused is having the business relations and the respondent-accused had purchased the cumin seeds of Rs.33,73,180/-. Out of the aforesaid amount, some amount has been paid by the respondent- accused and for the amount of Rs.28,89,182/- the cheque bearing No.273575 of the Axis Bank dated 06.10.2021 was issued in favour of the complainant. On depositing the said cheque, it was dishonored with an endorsement of ‘funds insufficient’ and therefore, after following the due procedure prescribed under the N.I. Act, a private complaint came to be filed. 2.1. The learned trial Court after recording the verification has issued the summons vide order dated 24.01.2022. Thereafter, the summons remained unserved as well as due to the absence of the complainant, private complaint came to be dismissed, which is the subject matter before this Court. 3. Heard the learned advocate Mr.P.T.Jasani for the appellant-original complainant and though the notice was served by way of substitution of service, the respondent-accused did not appear to oppose this appeal. 4. Learned advocate Mr.P.T.Jasani submits that this complaint was filed during the COVID-19 pandemic and after filing the complaint, the learned advocate for the appellant has informed that on appearance of the respondent-accused, the presence of the complainant would require and the progress of trial would be informed time to time. 4.1. Learned advocate Mr.Jasani submits that though in the rojkaam, it is stated by the learned trial Court that the notice be issued to the complainant, however in the impugned judgment and order, the learned trial Court has observed that notice was not returned after service to the complainant. Learned advocate Mr.Jasani submits that instead of waiting for the service of notice, learned trial Court has dismissed the complaint for non- prosecution and thereby the complainant left remediless in view of time barred litigation. 4.2. Learned advocate Mr.Jasani submits that instead of waiting for the service of notice, learned trial Court has dismissed the complaint for non- prosecution and thereby the complainant left remediless in view of time barred litigation. 4.2. Learned advocate Mr.P.T.Jasani submits that as the stage of the trial was for securing the presence of the respondent- accused, due to non-presence of the complainant, it cannot be said that proceedings could not be concluded. Learned advocate Mr.P.T.Jasani submits that instead of dismissing the complaint, learned trial Court could have issued the summons or warrant to the respondent- accused to see that the respondent-accused is remained present before the learned trial Court, however, instead of doing so, the learned trial Court exercised the power under Section 256 of the Cr.P.C and therefore, learned advocate Mr.P.T.Jasani prays to interfere with the impugned judgment and order of the acquittal and to remand the criminal case for fresh trial. 5. Considering the submissions advanced by the learned advocate Mr.P.T.Jasani for the appellant and before going into the merits, the provisions under which, the impugned order is passed, is required to be re-looked. 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.” 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. 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. It transpires from the record that the summons came to be issued to the respondent- accused on 24.01.2022 however, the summons could not serve to the respondent-accused and respondent-accused did not appear before the learned trial Court. It further transpires from the rojkaam that in the entries dated 30.08.2022, 11.10.2022. 23.11.2022 the learned trial Court has observed that the parties are absent and the notice be issued to the complainant. However, thereafter there was no any endorsement in the rojkaam with regard to the service of notice, in fact, in the impugned judgment and order of the acquittal, the learned trial Court has observed that the notice did not return after service. 8. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always the complainant who is at stake for his money, which ought to have paid through the cheuqe. Unfortunately, the cheque in question was dishonored and under such circumstances, instead of dismissing the complaint on recording the absence on single default, the learned trial Court could have adopted the course either to adjourn the case for hearing to some other day under provision of Section 256 of the Cr.P.C. or to grant the exemption to the complainant on a particular day for his non-appearance. 9. 9. In view of the same, this Court is of the view that the complaint is required to be restored to its original file and the impugned judgment and order of acquittal is required to be quashed and set aside. 10. Resultantly, this appeal is hereby allowed. The impugned judgment and order dated 03.01.2023 passed in Criminal Case No.1486 of 2021 by the learned Judicial Magistratre First Class, Harji, District Patan is quashed and set aside. The proceeding shall stand restored to its original number on the file of the learned Magistrate and learned trial court shall now proceed from the stage when the order of the acquittal was passed. Record and proceedings be sent back to the concerned trial Court, forthwith. 11. 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.