1 2025:CGHC:29049 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 223 of 2025 1 - Nitesh Raicha S/o Shri Vijay Raicha Aged About 40 Years Address- Flat No. R/s-504, City Heart Residency, Kailashpuri, District- Raipur (C.G.) (Complainant) ...Appellant. versus 1 - Hitesh Kumar Janghel S/o Late L.R. Janghel Aged About 34 Years House No. 20/ B, Central Avenue Road, Near Jalaram Mandir, Dallirajhara, District- Balod (C.G.) Pin Code 491228. 2 - Smt. Santoshi Janghel W/o Shri Hitesh Janghel Aged About 30 Years House No. 20/ B, Central Avenue Road, Near Jalaram Mandir, Dallirajhara, District- Balod (C.G.) Pin Code 491228. ... Respondent(s)/Accused. For Appellant : Shri Suraj Patel, Advocate. For Respondent(s) : Ms. Pranoti Das, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 30/06/2025 1. Questioning the impugned order dated 03.07.2024 passed by the Judicial Magistrate First Class, Raipur, dismissing the Complaint Case No.5084/2022 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 setting aside of the said order and for restoration of the complaint case. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.07.01 10:54:24 +0530 2 2. Brief facts of the case are that the appellant/complainant has filed a complaint case under Section 138 of the Act, 1881 which has been dismissed by the trial Court invoking the powers under Section 256 of the CrPC vide order dated 03.07.2024 acquitting the respondents/accused, as on the subject date of hearing, neither complainant nor his counsel made appearance. Hence this Appeal. 3. Learned counsel for the appellant submits that complaint case was transferred from another Court vide order dated 11.06.2024, however, complainant was not aware about such transfer, in such circumstances, he has not made appearance before the transferee Court, because of which, the case was dismissed for want of prosecution. In view of such backdrop, the appeal may be allowed and the complaint case may be restored. 4. Per contra, learned counsel for the respondent would support the order impugned. 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 1 (1998) 1 SCC 687 3 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 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 4 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 fact that case was transferred to another Court and for the reason that the complainant was not aware about such transfer, therefore, he could not made his appearance before the transferee Court for progression of his case, this Court is of the view that a good cause has been shown by the complainant/appellant for his non-appearance on the date of hearing. 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.5084/2022 is restored to its original file of the Judicial Magistrate First Class, Raipur for hearing and disposal in accordance with law on merits. 11.Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 12.Both the parties are directed to appear before the JMFC, Raipur on 29.08.2025. 13.The trial Court is directed to proceed with the matter from the last date of hearing, in accordance with law. Sd/- (Deepak Kumar Tiwari) Judge Avinash