1 2025:CGHC:29882 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 169 of 2024 1 – Smt. Minakshi Thakre (died) through legal representative :- Ashok Thakre S/o Shri B. R. Thakre Aged About 39 Years R/o Arvind Marg, Near Honda Showroom, Sarkanda, Bilaspur (C.G.). (Complainant) ... Appellant. versus 1 - Smt. Surbhi Dakle (Tolani) W/o Shri Akash Tolani, R/o Munktidham Chowk, Near Shitla Mandir, Naya Sarkanda, Bilaspur (C.G.) 495001. (Accused). ... Respondent(s) For Appellant : Shri Akash Shrivastava, Advocate. For Respondent(s) : None. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 02/07/2025 1. Questioning the impugned order dated 14.10.2022 passed by the Judicial Magistrate First Class, Bilaspur C.G., dismissing the Complaint Case No.2796/2020 filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881, (for short “the Act, 1881”) the present acquittal appeal has been filed by the appellant/complainant seeking AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.07.03 10:48:24 +0530 2 setting aside of the said order and for restoration of the complaint. 2. Brief facts of the case are that the appellant/complainant has filed a complaint case under Section 138 of the Act, 1881 which was dismissed for want of prosecution vide order dated 14.10.2022. Hence this Appeal. 3. Learned counsel for the appellant submits that complainant has duly engaged a lawyer who never informed her about her appearance before the trial Court, as such, complainant’s non-appearance was not deliberate and her absence is bonafide. Considering the backdrop, he submits that this appeal may be allowed and the matter may be remitted to the concerned trial Court to decide it on 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 court notices that the complainant is absent on a 1 (1998) 1 SCC 687 3 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 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. 7. Reverting back to the facts of the present case, perusal of order sheet of the trial Court would show that on 24.08.2022 all the employees of the trial Court were abstained from the Court work and a common order 4 was passed for listing of all the cases on 14.10.2022. On the said date, complainant and his counsel were not present, as a result, case was dismissed. Particularly considering that on the earlier date of hearing, no regular order was passed and only a common order was passed for listing of all the cases and further the fact that the complainant has duly engaged a counsel who has not made appearance, in such circumstances, non-appearance of the complainant/appellant appears to be bonafide. Hence, this Court is of the view that a good cause has been shown by the complainant/appellant to restore the case to decide the same on its merits. 8. The reason assigned by the appellant/complainant for her absence is held to be sufficient reason for her absence. Accordingly, her absence is condoned. 9. Accordingly, the impugned order being unsustainable is hereby set aside. The Complaint Case No.2796/2020 is restored to its original file of the Judicial Magistrate First Class, Bilaspur for hearing and disposal in accordance with law on merits. 10.Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 11.Both the parties are directed to appear before the concerned trial Court on 29.08.2025. 12. Appellant/Complainant is further directed to take suitable steps to secure presence of respondent/accused before the concerned trial Court, in accordance with law, as none appears on behalf of the respondent before this Court, though power has been filed. 5 13. Trial Court is directed to proceed with the matter in accordance with law from the last date of hearing. 14. A copy of this judgment along with record be sent to the concerned Court. Sd/- (Deepak Kumar Tiwari) Judge Barve/Avinash