1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 218 of 2025 1 – B. L. Gangwani S/o Late Shri Waliram Gangwani Aged About 72 Years R/o House No. U-3, Shivaji Park, Avanti Vihar, Police Station - Telibandha, Raipur, Chhattisgarh, (Complainant) ... Appellant versus 1 - C. Yajulu Rao S/o Late Shri Jagannath Rao R/o House No.- 27/191, New Shanti Nagar, Police Station - Civil Line, Raipur, Chhattisgarh ... Respondent For Appellant : Ms. Upasana Mehta, Advocate. For Respondent : Mr. Akash Kumar Kundu, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 04/09/2025 1. This acquittal appeal U/s 419(4) of BNSS, 2023 has been filed questioning the impugned order dated 17.07.2017 passed by the Judicial Magistrate First Class, Raipur, District Raipur (CG) by which the Complaint Case No.1640/2016 was dismissed due to non-prosecution under Section 256 of CrPC, which amounts to the acquittal of the Respondent/accused from the charge of committing the offence under Section 138 of N.I. Act and also seeking for restoration of the Complaint Case No.1640/2016. Digitally signed by BHOLA NATH KHATAI Date: 2025.09.08 14:42:52 +0530 2 2. The appellant/complainant filed a complaint case which has been dismissed by invoking the power under Section 256 of the CrPC by learned Magistrate vide order dated 17.07.2017. Hence this Appeal. 3. Learned counsel for the appellant/complainant submits that the complainant was continuously appearing before the learned trial Court. Though on the date of hearing the complainant was not present, only on a single default without any opportunity, the trial Court has dismissed the complaint in a mechanical manner, which is not sustainable. He would submit that the complainant is about 72 years old and the counsel appointed by him did not inform him about the date of hearing due to which he also could not appear before the trial Court on the date of hearing. Therefore, considering these grounds, for the ends of justice, he prays to allow the appeal and to remit the matter to the concerned trial Court to decide the same on its own merits. 4. Learned counsel appearing for the respondent/accused, on the other hand, opposing the appeal submits that the complaint case has rightly been rejected for want of prosecution, therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the impugned order 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 3 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 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, it is evident that the complainant is an old man of about 72 years. The 4 order sheets of the trial Court reflect that the complainant himself or along with his counsel was appearing before the Court for the last few hearing dates. On the fixed date of hearing i.e. 17.07.2017, the accused was also required to furnish bail about which the trial Court has not made any mention. Since as per the complainant the counsel appointed by him did not inform him about the date of hearing, he could not appear on 17.07.2017. So the trial court, without any opportunity, dismissed the complaint case only on the single default of the complainant. In such circumstances, this Court is of the view that a strong case is made out in favour of the appellant/complainant to restore the case to decide on its own merits. 9. The reason assigned by the appellant/complainant 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 and the complaint case is restored to its original file for hearing and disposal in accordance with law on merits. 11. Both the parties are directed to appear before the trial Court on 8th October, 2025. 12. The trial Court is directed to proceed with the matter on its own merits. 13. Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 14. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Sanjay Kumar Jaiswal) Judge Khatai