1 2025:CGHC:24474 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 258 of 2025 1 - Tukaram Sahu S/o Late Shobharam Sahu Aged About 55 Years R/o Pandipani Mal, Thana- Sihava, Tahsil- Nagri, District- Dhamtari (C.G.) (Complainant) ... Appellant versus 1 - Dhaneshwar Kumar Sinha S/o Milan Sinha Aged About 32 Years R/o School Para Dondki, Thana- Arjuni Tahsil/district- Dhamtari (C.G.) (Accused) ... Respondent For Appellant : Mr. Samir Singh, Advocate For Respondent : None though served Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 16/06/2025 1. Questioning the impugned order dated 13.11.2024 passed by the Judicial Magistrate First Class, Nagri, District Dhamtari, dismissing the Criminal Complaint Case No.428/2023 filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881, the present acquittal appeal has been filed by the appellant/complainant seeking setting aside of the said PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.06.17 14:19:17 +0530 2 order and for restoration of the criminal complaint. 2. Necessary facts of the case are that the appellant/complainant has filed a complaint case which has been dismissed by invoking the power under Section 256 of the CrPC vide order dated 13.11.2024. Hence this Appeal. 3. Learned counsel for the appellant submits that counsel for the complainant has wrongly noted the dates of hearing in his diary. Further, the case was listed for appearance of the respondent/accused and the trial Court has not exercised its discretionary power in a proper manner. As the case is at the initial stage, therefore, he prays to allow the appeal and remit the matter to the concerned trial Court to decide it on merits. 4. Heard learned counsel for the appellant and perused the impugned judgment 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, as the case is at the initial stage and the case is fixed for appearance of the respondent/accused, considering the reason assigned by the appellant/complainant that the 4 counsel has not noted the proper date in his diary and as such, the complainant was not aware of the date of hearing, in such circumstances, this Court is of the view that a strong case is made out in favour of the complainant/appellant to restore the case to decide the same on its merits. 8. The reason assigned by the appellant/complainant for his absence is held to be sufficient reason for his absence. Accordingly, his absence is condoned. 9. Consequently, the impugned order being unsustainable is hereby set aside. The complaint Case No.428/2023 is restored to its original file of the Judicial Magistrate First Class, Nagri, District Dhamtari for hearing and disposal in accordance with law on merits. 10.Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). Sd/- (Deepak Kumar Tiwari) Judge Priyanka