Appellant – original complainant has filed this appeal and challenged the order passed by the learned JMFC on 27.5.2009 acquitting the accused under section 256(1) of the Code of Criminal Procedure. 2. The complaint is filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 in the Court of learned CJM (First Class), Rajkot and it was registered as Criminal Case No.3855 of 2007. Summons was served to the accused, who appeared and pleaded not guilty. Therefore, the case was adjourned for recording of evidence. However, on 27.5.2009, as complainant or his advocate did not appear in the Court, the impugned order was passed and the accused was acquitted. Being aggrieved by the said decision, the complainant has preferred this appeal.
3. I have heard learned advocate Mr. Majmudar for the appellant and learned APP Miss Shah for the respondent State.
4. By order dated 2.2.2010, appeal was admitted and notice for admission was issued by the Court. However, despite service of notice, the respondent accused did not appear. In view of the fact that the matter was already admitted and the notice of admission was issued by the Court by order dated 2.2.2010, this Court again by order dated 24.11.2011 issued notice to the respondent No.2 informing him that the appeal is fixed for final hearing. The notice is duly served. However, the respondent No.2 did not appear.
5. It appears from the copy of Rojkam annexed with the compilation that the complainant was represented by advocate. However, neither the complainant nor his advocate appeared on the adjourned date i.e. 27.5.2009 and therefore, the trial Court passed the impugned order. It appears that when the impugned order was passed even neither the accused nor his advocate was present. It is settled proposition that the matter has to be decided on merits and should not be thrown out on technical grounds. In the decision of Memon Mohmedrafik Rasulbhai Vs. Desai Rameshkumar Virsangbhai and another reported in 2010 (2) GLR 1257, this Court has ruled that Magistrate is duty bound to resort to provisions of the Code to secure presence of the witnesses when complainant is not present in the Court. In view of this decision, the impugned order is required to be set aside and the matter is required to be remanded to the trial Court to proceed further in accordance with law.
6. In the result, the appeal succeeds. The order passed by the learned JMFC, Court No.5, Rajkot on 27.5.2009 in Criminal Case No.3855 of 2007 is quashed and set aside and the matter is remanded to the trial Court to proceed further in accordance with law after giving opportunity of hearing to both the parties.
(BANKIM.N.MEHTA, J.) shekhar*