1 2025:CGHC:12748 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 969 of 2025 • Gopichand Service Station Dipka Tahsil- Katghora, District- Korba (C.G.) Through Proprietor Ganesh Rao Waghmare, S/o Gopichand Waghmare, Aged About 70 Years, R/o Near Nagorao Shesh School Juna Bilaspur, Distt.- Bilaspur (C.G.) ... Petitioner versus • Kush Kumar Rathore R/o R.S. Automobile, Bajrang Chowk, Hardi Bazar, District- Korba (C.G.) ... Respondent For Petitioner : Mr. Sourabh Sharma, Advocate For Respondent : None Hon’ble Shri Justice Arvind Kumar Verma Order on Board 18/03/2025 1. Heard on application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita 2023. 2. This petition is preferred against the order dated 28.12.2022 passed by learned Judicial Magistrate First Class Katghora, District- Korba, Chhattisgarh, in unregistered Criminal Complaint Case between Gopichand Service Station Vs Kush Kumar Rathore whereby complaint case filed under Section VAISHALI LUCKY NAGARIA Digitally signed by VAISHALI LUCKY NAGARIA Date: 2025.03.22 17:23:26 +0530 2 138 of Negotiable Instrument has been dismissed for want of prosecution. 3. Brief facts of the leading case are that:- The complainant/Petitioner is running fuel station in the name of Gopichand service station, Katghora, District Korba (C.G.) and as such engaged in the business of selling petrol and diesel from its outlet. The accused/respondent is also engaged in a business of transportation, so credit facility was advanced by the petitioner to respondent with respect to sale of fuel in vehicle owned by the respondent and account was maintained by the petitioner and time to time the payment was made by respondent through cheque form this fact is evident that there is healthy business relationship between petitioner and respondent. To discharge legal liability of outstanding amount of Rs 2,74,772/-towards purchase of petroleum products the respondent/accused has issued cheque bearing no. 072929 dated 06.09.2022 of Axis Bank Limited Dipka Branch Dist. Korba (C.G.). Copy of Cheque dated 06.09.2022. the petitioner presented the cheque in his account at State Bank of India then on 07.09.2022 the petitioner bank has informed that, cheque was dishonored with endorsement that "insufficient fund". The petitioner was shocked to know that respondent has given in cheque of account which has insufficient fund, then the petitioner has no other remedy but sent registered legal notice on 16.09.2022 the registered notice received back to the petitioner with endorsement that "Refused" to accept the notice 3 meaning thereby notice was duly served as registered notice was duly served on permanent address of respondent. Then after expiry of statutory period, a complaint was filed before Judicial Magistrate First Class Katghora Dist. Korba (C.G.) under Section 138 of Negotiable Instrument Act 1881 read with section 420 of I.P.C. dated 13.10.2022. 4. Then after matter was fixed for argument before registration of complaint on 05.11.2022 and then after matter for 25.11.2022 then fixed on 09.12.2022, 21.12.2022 and 28.12.2022, the petitioner is duly represented through counsel and from order sheet dated 13.10.2022 to 09.12.2022 evident that it was not registered and fixed for argument before registration. On date 28.12.2022 when matter was called for hearing for argument before registration the petitioner's counsel fails to mark his appearance. It is worth here to mention that counsel has not inform the date fixed for argument before registration to the petitioner and when matter was dismiss then also the petitioner not aware and as he was not present in court when matter was taken up for hearing time and again the petitioner tried to contact his counsel but he not responded then petitioner through another counsel enquire about the matter and on 10.10.2024 the petitioner came to know that matter is dismissed for want of prosecution and on same day i.e. 10.10.2024 applied for certified copy of entire proceeding and same was ready and deliver on 10.10.2024 and then after filing 4 the instant petition for restoration of unregistered Criminal Case dismissed for want of prosecution. 5. Learned counsel for the appellant would submit that unregistered Criminal Complaint filed under Negotiable Instrument Act dismissed for want of prosecution, at pre cognigence stage and will not amount to discharged, unregistered criminal complaint is dismissed simplyciter for want of prosecution and will not amount to discharged/acquittal and therefore Hon'ble court inherent jurisdiction Under section 482 of Cr. P.C. (new section 528 of BNSS) is required to be exercise the complaint has been dismissed on technical ground i.e. for want of prosecution. under chapter XV of Cr.P.C. that section 200 of Cr.P.C. (new section 223 of BNSS) deals with examination of complaint section 203 of the Cr.P.C. (new section 226 of BNSS) deals with dismissal of complaint that to after considering the statement on oath of the complainant and the witnesses than the magistrate is of opinion that there is no sufficient ground than he shall dismissed the complaint and the commencement of the proceeding before magistrate under section 204 of Cr.P.C. (new section 227 of BNSS) will be commence from issuance of process i.e. the magistrate takes contingence of an offence, in the instant case the complaint not yet registered nor statement of complainant and witnesses recorded prior to taking contingence, therefore petitioner filing instant petition for restoration of unregistered criminal 13.10.2022. He further 5 submits that for the fault of counsel in not appearing on date fix without acknowledging petitioner amounts to depriving petitioner from contesting the case on its merit, the counsel has not inform about his unavailability to attend the proceeding and the petitioner contacted his counsel as there is no positive response from him, thereafter the petitioner engaged another counsel to enquire about the proceeding then after he applied for certified copy and then after contacted the counsel at Bilaspur for filing instant petition for restoration of unregistered criminal complaint which has been dismissed for want of prosecution, delay is bonafide and unintentional. He lastly submits that the learned Trial Court below failed to consider that the non-appearance of the counsel and the petitioner was bonafide. 6. Learned counsel for the petitioner humbly prays that this Hon’ble Court may kindly be pleased to allow this petition and further be pleased to restore the unregistered Criminal Case dismissed for want of prosecution order dated 28.12.2022 passed by JMFC, Katghora and remitted back the case for adjudication of its own merits in accordance with the law, in the interest of justice. 7. Having heard the rival contentions put forth by the learned counsel appearing for the petitioner, it is trite to refer to a decision of Hon’ble Supreme Court made in somewhat identical set of facts, i.e. in Mohd, Azeem Vs. A. Venkatesh and Another (2002 (7) SCC 726). Vide the said judgment, the 6 Hon’ble Supreme Court has, in very categorical terms, held that the dismissal of a complaint for one singular default in appearance on the fixed date for the defence witness on the part of the complainant is improper. 8. If we compare the facts of the said case with that of the present case, it would show that the facts leading to the present circumstances are almost of a similar nature. In the present petition also, if we see the record it would show that the case was dismissed for want of prosecution. 9. Relying upon the said decision of the Hon’ble Supreme Court the Madhya Pradesh High Court also in a decision made in Yashwant Singh Vs. Pyarelal Uikey [2010 (III) MPWN 102] has taken a similar view holding that the dismissal of a complaint on the first default on the part of the complainant in his appearance before the court is improper and unjustified. 10. Taking the aid of the ratio laid down by the Hon’ble Supreme Court in the case of Mohd. Azeem (supra) and also in the light of the judgment passed by the Madhya Pradesh High Court in Yashwant Singh’s Case (supra), in my view, the impugned order passed by the Trial Court in the instant case appears to be too harsh and technical. 11. Accordingly, the instant appeal is allowed. The impugned order dated 28.12.2022 passed by learned Judicial Magistrate First Class, Katghora District- Korba, Chhattisgarh in case of Gopichand Service Station vs Kush Kumar dismissing the criminal case on account of default in appearance on the part of 7 the appellant is set aside and the matter is remitted back to the Trial court for deciding the same on its own merits after giving due opportunity of defense to either side. 12. Since both the parties are representing before this Court, it is directed that both the parties, that is the complainant as well as the accused, shall remain present before the Trial Court on 17.04.2025 and the Trial Court shall proceed further with the case from the stage for which the case was fixed on previous date. 13. With the aforesaid direction, the instant petition stands allowed and is disposed of accordingly. Sd/- (Arvind Kumar Verma) JUDGE vaishali