1 2025:CGHC:26410 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 190 of 2025 Kamlesh Dedhiya S/o Kantilal Dedhiya Aged About 41 Years At - Raipura Square, Raipura, P/s Dd Nagar, Raipur, C.G. ... Appellant. versus Jyoti Lodha W/o Harish Lodha Aged About 39 Years Jain Traders, Opp Singhal Traders, Amin Para, Near Mahamaya Mandir, Raipur, C.G. ... Respondent. For Appellant : Mr. Manoj Kumar Yadav, Advocate. For Respondent : None. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 20.06.2025 1. Questioning the impugned order dated 15.09.2023 passed by the Judicial Magistrate First Class, Raipur dismissing the Complaint Case No.2378/2017 filed under the provision of Section 138 of the Negotiable Instruments Act, 1881, the present acquittal appeal has been filed by the appellant/complainant seeking the setting aside of the said order and restoration of the complaint case. 2. The appellant/complainant has filed a complaint case which has been dismissed by the learned Magistrate invoking the power under Section Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.06.20 17:07:35 +0530 2 256 of the CrPC by the order impugned. Against which, this appeal has been filed. 3. Learned counsel for the appellant submits that the trial was already completed and case was fixed for final arguments on 04.09.2023 and complainant has duly engaged a lawyer who was regularly appearing before the Court, however, on the last date he could not made his appearance. Learned counsel submits that since the case is already reached at final stage and there is no deliberate fault on the part of the complainant, therefore, dismissal of the case on account of non appearance is not justifiable at this stage. Therefore, the matter may be remanded to the concerned trial Court to decide it on its own merits. 4. Heard learned counsel for the appellant and perused the impugned order and other documents annexed with the appeal carefully. 5. 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 1 (1998) 1 SCC 687 3 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 whether the personal attendance of the complainant is necessary or not. 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. Reverting back to the facts of the present case, since the case was fixed for final arguments and complainant has duly engaged a lawyer to 4 advance his case who was regularly appearing on earlier dates, therefore, no deliberate default appears on the part of the complainant. Hence, dismissal of the the complaint case by invoking the power under Section 256 of the CrPC is not sustainable and same is hereby set-aside. The complaint case is restored to its original file for hearing and disposal in accordance with law on its own merits. 8. Both the parties are directed to appear before the trial Court on 29.08.2025. 9. The complainant is at liberty to take suitable steps for the presence of the respondent/accused in accordance with law. Thereafter, the trial Court shall proceed in the matter on its own merits in accordance with law. 10. The Acquittal Appeal is allowed. No order as to cost(s). 11.Let a copy of this order and record be sent to the concerned trial Court forthwith. Sd/- Sd/- (Deepak Kumar Tiwari) Judge Ajay.