1 2025:CGHC:46277 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 170 of 2025 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. (Complainant) ... Appellant versus C. Yajulu Rao S/o Late Shri Jagannath Rao, R/o House No 27/191 New Shanti Nagar, Police Station Civil Line, Raipur C.G. ... Respondent For the Appellant : Ms. Upasana Mehta, counsel for the appellant. For the respondent : Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 10/09/2025 1. The complainant/appellant has filed this petition under Section 419(4) of BNSS read with section 378(4) of CrPC seeking a direction to set aside the impugned order 08.08.2024 passed by the Judicial Magistrate First Class, Raipur, District Raipur Chhattisgarh by which the Complaint Case No. 2353/2016 was dismissed for non- prosecution. 2 2. By impugned order the learned trial Court invoking the power under Section 256 of the CrPC has dismissed the said complaint which has consequential effect of acquittal of the respondent/accused from the charge of committing the offence u/s 138 of N.I. Act. Hence this Appeal. 3. Learned counsel for the appellant/complainant submits that when the matter was taken up on 08.08.2024 for taking evidence of complainant witnesses, the complainant was not present and the trial Court exercising the power u/s 256 of CrPC has dismissed the complaint in a mechanical manner which is not sustainable. She further submits that the complainant in a Section 138 NI Act case, who has suffered monetary loss, is to be considered a victim under the Criminal Procedure Code (CrPC) and consequently, such a complaint case should not be dismissed for want of prosecution or non-appearance of the complainant and that too when the matter was at the evidence stage of complainant witnesses. She therefore prays to allow the appeal and remit the matter back to the trial Court by restoring the case to its original number for deciding the same on its own merits. 4. I have heard learned counsel for the petitioner and have minutely perused the impugned order and the record of the trial Court. 5. In the matter of Associated Cement Co. Ltd. vs. Keshvanand 1998) 1 SCC 687 the Hon’ble Supreme Court has held that Section 256 of the Code imposes two constraints on the Court for exercising the power to dismiss 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 3 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. 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 as to whether or not the personal attendance of the complainant is 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. 7. In the instant case, it has been stated that a cheque worth Rs. 3,00,000/- was bounced. The Supreme Court has emphasized that a complainant in a Section 138 of the Negotiable Instruments Act case is a "victim" and that such cases should not be dismissed under Section 256 of the Code of Criminal Procedure (CrPC) for the non-appearance of the complainant, especially when the matter has already reached the evidence stage. 4 8. However, a perusal order sheets of the trial Court reflects that the complaint is pending since 2016, the statements of complainant and one of his witnesses Amit were recorded and thereafter when the matter was taken up for recording remaining evidence of complainant’s witnesses on 15.07.2024, 30.07.2024 and 08.08.2024 the complainant was not present. The trial Court in its order dated 15.07.2024 observed that though the complainant is being given time since 24.04.2024 but he had been unable to keep the witnesses present. As the case is pending since 2016 and only two witnesses have been examined, the trial Court directed the complainant to ensure the presence of the witnesses on the next date and the accused side should also be ready for cross-examination and accordingly, fixed the case for evidence of complainant’s side on 30.07.2024. On 30.07.2024, though the witness of complainant i.e., Branch Mananger of the Bank was present with documents, but due to absence of complainant and his counsel, the witness statement could not be recorded and again time was granted to the complainant with a direction that he should appear on the next date of hearing and the case was fixed for appearance of complainant on 08.08.2024. On that date also, neither the complainant nor his advocate was present, therefore, by impugned order dated 08.08.2024 the court observed that the above acts of complainant shows his disinterest in the case and non-compliance of the Court order and thus the trial Court dismissed the complaint u/s 256 of the CrPC, the effect of which was acquittal of the accused. 9. Since the statements of complainant and his one other witness had already been recorded as appears from order sheets, I am of the opinion that the matter should be disposed of on merits. Having thus perused the order sheets of the trial Court and applying the 5 position of law declared by Hon’ble the Supreme Court, this Court is inclined to allow this appeal subject to payment of costs of Rs.3000/- which shall be deposited with the DLSA, Raipur within a period of two weeks. 10. Accordingly, the impugned order 08.08.2024 is hereby set aside and the complaint case is restored to its original number for hearing and disposal in accordance with law on merits. 11. The appellant is directed to appear before the trial Court on 13th October, 2025. 12. The trial Court is directed to dispose of the matter on its own merits after giving full opportunity of hearing to both the parties. 13. Resultantly, the Acquittal Appeal is allowed at the motion stage. 14. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Sanjay Kumar Jaiswal) Judge Rao