[2025:RJ-JP:19630] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Appeal (Sb) No. 2040/2024 Shekhar Lawas S/o Kishore Lal Lawas, Aged About 46 Years, Resident Of A-3 R.k. Tower, In Front Of Prabhu Ki Bagiya (Shyam Residency), Masuda Road, Beawar, Dist. Ajmer, (Raj.) ----Appellant Versus Suresh Kathat S/o Sardara Kathat, Resident Of Village Salakot Post Chang Tahsil Raipur Dist. Pali, Rajasthan. ----Respondent For Appellant(s) : Ms. Bismad Kaur For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 02/05/2025 1. Instant criminal appeal is preferred by appellant complainant aggrieved from order dated 24.01.2023 in criminal case No.590/2018 passed by learned Special Judicial Magistrate (NI Act Cases), Beawar, Ajmer whereby complaint under Section 138 NI Act was dismissed for non-prosecution under Section 256 Cr.P.C. 2. Learned counsel for appellant while referring the grounds of present appeal submitted that appellant complainant has filed a complaint under Section 138 NI Act and trial court after cognizance in 2017 has summoned the accused but accused remained absent due to non-service. She submitted that accused has avoided service and a bailable warrant could not be served upon him. She further submitted that due to certain unavoidable reasons counsel remained absent and complaint was dismissed under Section 256 Cr.P.C. She submitted that one more [2025:RJ-JP:19630] (2 of 3) [CRLAS-2040/2024] opportunity be granted to appellant complainant to present his case. 3. Heard learned counsel for appellant. 4. After grant of leave on 05.08.2024, notice was issued to respondent and same was served upon father of respondent accused. Despite service, no one was present on behalf of respondent Suresh. 5. Appellant complainant has filed a complaint case under Section 138 NI Act after non-payment of cheque amount by respondent Suresh. Learned trial court has taken cognizance on 05.08.2017 and directed issuance of notice. After service of summons, respondent remained absent and the trial court has directed issuance of bailable warrant on 13.08.2019. Despite efforts bailable warrant could not be served but on 22.12.2022 the complainant or his counsel remained absent and court has fixed the next date as 24.01.2023. On 24.01.2023 neither counsel for complainant nor counsel was present and complaint was dismissed under Section 256 Cr.P.C. 6. It is apparent on record that the stage on which matter was dismissed was fixed for service upon respondent through bailable warrant. The process was filed by appellant for effecting service upon respondent but service could not be effected upon him. This Court while considering the judgment of Hon’ble Supreme Court in case of Mohammad Azeem Vs. A. Venkatesh and Anr. (2002) 7 SCC 726 has allowed S.B. Criminal Leave to Appeal No. 109/2022 on 18.07.2023. The principle of law is applicable in the instant case therefore looking to the grounds as mentioned by [2025:RJ-JP:19630] (3 of 3) [CRLAS-2040/2024] learned counsel for appellant, it is appropriate to allow instant appeal. 7. In view of discussion made hereinabove, instant criminal appeal is hereby allowed and impugned order dated 24.01.2023 is hereby set aside. As a result, criminal case No.590/2018 is restored to original number and remitted back to the trial court with direction to proceed further. 8. The parties are directed to remain present before trial court on 02.06.2025. In case, respondent accused fails to remain present, then trial court shall ensure that appropriate process is served upon him to secure his presence. The trial court shall ensure that matter be decided within a period of 6 months from date of receipt of copy of this order. 9. Misc. application stands disposed of. (ASHOK KUMAR JAIN),J PREETI VALECHA /65