1 2025:CGHC:24985 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 138 of 2025 1 - B.L Gangwani S/o Late Shri Waliram Gangwani, Aged About 70 Years R/o House No U-3 Shivaji Park, Avanti Vihar, Police Station Telibandha, Raipur C.G. ... Appellant. versus 1 - C. Yajulu Rao S/o Late Shri Jagananth Rao, R/o House No. 27/ 191 New Shanti Nagar, Police Station Civil Line, Raipur C.G. ... Respondent(s) For Appellant : Ms. Upasana Mehta, Advocate. For Respondent(s) : Shri Akash Kumar Kundu, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 17/06/2025 1. Questioning the impugned order dated 08.08.2024 passed by the Judicial Magistrate First Class, Raipur, District Raipur C.G. dismissing the Complaint Case No.2354/2016 filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881, the present acquittal appeal has been filed by the appellant/complainant seeking setting aside of the said order and for restoration of the complaint. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.06.18 14:32:56 +0530 2 2. Necessary facts of the case are that the appellant/complainant has filed a complaint case which has been dismissed by invoking the powers under Section 256 of the CrPC vide order dated 08.08.2024. Hence this Appeal. 3. Learned counsel for the appellant submits that appellant, is a old aged person, who had duly engaged a lawyer who had not intimated the date of the proceedings to him, therefore, complainant could not appear before the learned Court, so there is no deliberate default on the part of complainant. Lastly, learned counsel prays to restore the original case to its original number. 4. On the other hand, learned counsel for the respondent would support the order impugned. 5. Heard learned counsel for the parties and perused the impugned judgment and other documents annexed with the Appeal carefully. 6. In the matter of Associated Cement Co. Ltd. vs. Keshvanand1 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 provides 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 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 1 (1998) 1 SCC 687 3 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.” 7. In view of the aforesaid legal provision, it is explicit that before proceeding to dismiss the complaint, in the absence of complainant, in exercise of jurisdiction under Section 256 of the CrPC, it must be considered by the Court whether the presence of the complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal attendance of the complainant is or is not necessary. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Section 256 of the CrPC would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. 8. Reverting back to the facts of the present case, considering the reasons assigned that the appellant is a old aged person who had duly engaged a lawyer who did not intimate the date of hearing for which, complainant could not appear on the date of proceedings, further considering all the 4 aspects, this Court is of the view that a good case is made out in favour of the complainant/appellant to restore the case to decide the same on its merits, subject to depositing cost of Rs.2,000/- by the appellant before the concerned DLSA within a period of 30 days of this order. 9. The reason assigned by the appellant/complainant for his absence is held to be sufficient reason for his absence. Accordingly, his absence is condoned. 10.Consequently, the impugned order being unsustainable is hereby set aside. The complaint Case No.2354/2016 is restored to its original file of the Judicial Magistrate First Class, Raipur C.G. for hearing and disposal in accordance with law on merits. 11.Both the parties are directed to appear before the concerned Court on 29.07.2025. 12.Resultantly, the Acquittal Appeal is allowed. Sd/- (Deepak Kumar Tiwari) Judge Avinash