ORDER : S.V. Pinto, J. When the matter is called out, learned advocate Mr. Nikhil Vyas appearing for the respondent No. 1 is not present. 1. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the order dated 17.08.2023 passed by the learned 9th Additional Judicial Magistrate First Class, Vadodara (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 36631 of 2021, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution under the provisions of Section 256 of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) and the respondent No. 1 -original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I Act”). 1.1 The respondent No. 1 is hereinafter referred to as “the accused” in the rank and file as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under: 2.1 The appellant had filed a complaint against the accused under Section 138 of the N.I.Act as the accused had taken a loan of Rs.15,00,000/- from the appellant and the accused issued cheque No.070712 for Rs.15,00,000/- dated 28.06.2021 from his account with Axis Bank, Narol, Ahmedabad Branch. The appellant deposited the cheque in his bank account and the cheque was returned unpaid on 07.08.2021 with the endorsement “Funds Insufficient”. The appellant gave the demand statutory notice through his advocate on 21.09.2021 which was duly served to the accused on 24.09.2021 by RPAD but the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the N I Act before the Court of Chief Judicial Magistrate, Vadodara which came to be registered as Criminal Case No. 36631 of 2021. 2.2 The learned Trial Court was pleased to consider the affidavit, documents produced and examination-in-chief of the appellant and take cognizance for the offence under Section 138 of the N.I.Act and passed an order to issue summons to the accused. The appellant had filed his affidavit of examination-in-chief at Exh.4 and also filed an application at Exh. 5 to exhibit the documents, which were produced at Exh. 3. The appellant had filed his affidavit of examination-in-chief at Exh.4 and also filed an application at Exh. 5 to exhibit the documents, which were produced at Exh. 3. The summons were duly served to the accused but the accused did not appear before the learned trial Court and bailable warrants were issued to the accused. Learned advocate for the appellant had preferred applications at Exh.11 and Exh.12 to take the cover of bailable warrants by hand to get it served to the accused but the bailable warrants could not be served and by the impugned order dated 17.08.2023, the learned trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant. 3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378 Cr.P.C. 4. Heard learned advocate Ms. Vaidehi M. Parikh appearing for the appellant and learned APP Mr. Pranav Dhagat for the respondent No.2– State. Though served, the respondent No. 1 has not appeared either in person or though an advocate. 5. Learned advocate Ms. Vaidehi M. Parikh for the appellant has submitted that the learned trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore the impugned order is unsustainable and bad in law. Learned advocate further submits that the learned Trial Court has not appreciated the evidence on record and has passed the impugned order and hence, the same may be quashed and set aside. 6. Learned APP Mr. Pranav Dhagat for the respondent – State has submitted that after recording the absence of learned advocate for the appellant the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C. and hence, this Court may not interfere with the impugned order and has urged this Court to dismiss the present appeal. 7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:- "256. 7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:- "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. "8 At this stage, it is also appropriate to take into account the observations made by the Hon'ble Apex Court in the M/s. BLS Infrastructure Limited Vs M/s. Rajwant Singh & Others reported in 2023 4 SCC 326 in Para 20 which is reproduced as under: “12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under: “16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.” After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.” 8.1 A coordinate bench of this Court in the case of Sureshchandra Chandulal Patni Vs Natwarlal Keshavlal Patni reported in 1992 (1) GLR 626 observed in para 4 to 7 as under:- “(4) SECTION 256 of the Code of Criminal Procedure provides that 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 herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The proviso to Sec. 256 further contemplates 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. (5) IN the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application submitted by the Advocate for the complainant. In the present case, the situation as on 5/03/1984 squarely falls within the aforesaid proviso and still the learned magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is, therefore, clear that the learned Magistrate has ignored the provision contained in proviso to Sec. 256 of the Code of Criminal procedure and therefore the order passed by him is illegal and unsustainable. (6) IN the case of State of Gujarat v. Keshavaram Shivram Devmurari and Anr., (1977) XVIII GLR 524, this Court [ Coram : N. H. Bhatt, J. (as he then was)] observed that it was really unfortunate to dismiss the complaint in absence of the complainant and ignoring the proviso to Sec. 256 of the Code of Criminal procedure and it was held that the repetition of such instances would not be there in future in the Court of the Magistrate. However, it appears that this has been ignored while dismissing the complaint and acquitting the accused in the present case. (7) SIMILARLY, in the case of State of Gujarat v. Dhirajlal Pranslianker. Bhatt, reported in 1990 (1) GLH 466 : ( 1990 (1) GLR 201 ), it is observed that the. Court should exercise sound judicial discretion and should adjourn the case when the complainant is absent and particularly when he is represented by an Advocate.” 9. (7) SIMILARLY, in the case of State of Gujarat v. Dhirajlal Pranslianker. Bhatt, reported in 1990 (1) GLH 466 : ( 1990 (1) GLR 201 ), it is observed that the. Court should exercise sound judicial discretion and should adjourn the case when the complainant is absent and particularly when he is represented by an Advocate.” 9. On perusal of the documents produced on record by the learned advocate for the appellant, the case has been filed by the appellant on 27.10.2021 and since then, even though, the summons were issued to the accused, which were served, he did not appear before the learned trial Court and bailable warrants were issued against the respondent. The accused was successful in avoiding the service and there is no endorsement in the Rojkam as to whether the summons /warrants were served or not served to the accused. As per the Rojkam, on 17.08.2023, the learned advocate for the applicant was present but the accused or his advocate was not present and the appellant had preferred an application at Exh.13 for service of the warrant through from the Police Commissioner but the learned trial Court was pleased to reject the application and has passed the impugned order of dismissal. On the same day, the learned advocate for the appellant had preferred an application at Exh.14 for exemption stating that the complainant was suffering from cancer and he could not be contacted and an application at Exh.15 for restoration of the complaint was filed but the learned trial Court was pleased to reject both the applications. As per Rojkam, it appears that on 17.08.2023, learned advocate for the appellant was present and the appellant was vigilant, whereas, the accused had succeeded in avoiding service but without considering this fact and also the fact that the presence of the accused could not be secure even though bailable warrants were issued, the impugned order has been passed. 10. It is pertinent to note that the case has been dismissed for want of prosecution. In light of the settled principle of law of the Apex Court in M/s BLS Infrastructure Limited (supra), it appears that the trial Court has committed an error in dismissing the matter even though the evidence of the appellant was on record. 11. 10. It is pertinent to note that the case has been dismissed for want of prosecution. In light of the settled principle of law of the Apex Court in M/s BLS Infrastructure Limited (supra), it appears that the trial Court has committed an error in dismissing the matter even though the evidence of the appellant was on record. 11. Considering the facts and circumstances of the case and considering the observations made in the decision of the Apex Court and this Court referred hereinabove, this Court is of the considered opinion that the present appeal is required allowed and the matter is to be remanded back to the learned Trial Court for trial on merits. 12. Accordingly, the present appeal is allowed. The order dated 9th Additional Judicial Magistrate First Class, Vadodara in criminal case No. 36631 of 2021 is hereby quashed and set aside and the complaint is restored to its original status for trial in accordance with law. 13. The learned Trial Court is directed to decide the complaint on its own merits after giving proper opportunity to all the parties. The parties are directed to cooperate with the learned Trial Court in the proceedings without seeking any unnecessary adjournment.