1 2025:CGHC:23141 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 149 of 2025 A.V. Collection Through Proprietor Vinod Kumar Doultani, Aged 37 Years, S/o Bhajandas Doultani, At Shop No. A-8, I.G. V.P. Market, Pandri, Raipur, District- Raipur (C.G.) ... Appellant. versus Jitendra Sahu Aged About 47 Years Proprietor- A.S. Readymade Balod, Aged 47 Years, S/o Khemuram Sahu, At Sanjay Nagar, Ward No. 02, Balod, Post- Balod, District- Balod, C.G. ... Respondent. For Appellant : Mr. Vinay Nath Dev, Adv through V.C. For Respondent : None. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 11.06.2025 1. This appeal has been filed questioning the validity of the order dated 01.10.2024 passed by the Judicial Magistrate First Class, Raipur (CG) in Complaint Case No.5488/2022, whereby, learned trial Court exercising its powers under Section 256 Cr.P.C. dismissed the complaint of the appellant and acquitted the respondent/accused of the charge under Section 138 of the Negotiable Instruments Act, 1881. Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.06.12 14:24:33 +0530 2 2. Learned counsel for the appellant submits that due to mis-posting in the counsel's daily case diary, the appellant could not get the information regarding appearance of the date, due to which, he failed to appear before the trial Court, therefore, the said act was not deliberate. He also submits that the accused himself was not appearing the trial Court before the last date of hearing. However, by the impugned order, the trial Court dismissed the complaint case of the appellant in mechanical manner and acquitted the accused which is unjustifiable. In support of his contention, learned counsel places reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Associated Cement Co. Ltd. vs. Keshvanand1. In view of such submission, he prays to set-aside the impugned order and to restore the complaint case. 3. None for the respondent though notice has been served. 4. I have heard learned counsel for the petitioner and perused the documents annexed with the appeal. 5. In the matter of Associated Cement Co. Ltd. (Supra) the Hon’ble Supreme Court has held that Section 256 of the Code imposes two constraints on the Court for exercising the power for dismissing the complaint and observed as under:- “17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. The first is, if the court thinks that in a situation it is proper to adjourn 1 (1998) 1 SCC 687 3 the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. 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.” 6. After examining the facts of the present case, it appears that the respondent/accused himself was not appearing before the concerned Court before the last date of hearing and further the case was at initial stage. Considering the said fact and considering the reason assigned by the complainant that due to mis-posting in the daily case diary of the counsel, he could not appear before the Court and also keeping in view the fact that the complainant has duly engaged a lawyer for representation of the case, this Court is of the view that 4 the trial Court was not justified in dismissing the case of the complaint on account of non appearance. Hence, the impugned order is set-aside. 7. The complaint case is directed to be restore to its original number subject to payment of cost of Rs.500/- by the complainant before the concerned District Legal Service Authority within a period of one month. 8. Both the parties shall appear before the concerned Court on 29.07.2025. 9. Since the respondent is not represented in the present case, the complainant is at liberty to take suitable steps for appearance of the accused in accordance with law. Thereafter, the trial Court shall proceed in the matter in accordance with law. 10. Accordingly, the acquittal appeal is allowed to the extend indicated above. Sd/- (Deepak Kumar Tiwari) Judge Ajay