1 2025:CGHC:27534 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 267 of 2025 1 - Rajat Nahta S/o Naresh Nahta Aged About 30 Years R/o Ward No. 10, Sharingi Rishi Ward Nagri, Thana/tahsil- Nagri, District- Dhamtari (C.G.). (Complainant) ... Appellant. versus 1 - Harendra Kumar Pandey S/o Durjan Sing Pandey Aged About 34 Years R/o Ward No. 06, Arla, Thana- Anantpur, Tahsil- Makdi, District- Kondagaon (C.G.).(Accused) ... Respondent(s) For Appellant : Shri Samir Singh, Advocate. For Respondent(s) : None, though served. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 25/06/2025 1. Questioning the impugned order dated 14.11.2024 passed by the Judicial Magistrate First Class, Nagri, District Dhamtari, dismissing the Criminal Case No.81/2024 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 criminal complaint. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.06.25 16:33:27 +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 invoking the powers under Section 256 of the CrPC vide order dated 14.11.2024 and the respondent/accused was acquitted. Hence this Appeal. 3. Learned counsel for the appellant submits that on the date of hearing i.e. 14.11.2024, case was fixed for appearance of the accused, who was not present on that day, therefore, presence of complainant was not necessary on such date and learned trial Court, in a technical manner, dismissed the complaint. Lastly, he submits that as the case is at the initial stage, 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 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 1 (1998) 1 SCC 687 3 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.” 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. 4 7. Reverting back to the facts of the present case, considering the fact that complainant has duly engaged a lawyer and on the subject date of hearing, the case was fixed for appearance of the accused, therefore, presence of complainant was not necessary, and also considering the fact that the case is at the initial stage, in such circumstances, this Court is of the view that the trial Court would not be justifiable in dismissing the complaint and a good cause has been shown by the complainant/appellant to restore the case to decide the same on its merits. Ordered accordingly. 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 Criminal Case No.81/2024 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). 11.Both the parties are directed to appear before the JMFC, Nagri on 29.08.2025. 12.Further, Complainant is directed to take suitable steps for ensuring appearance of accused in accordance with law, as no one appears though notice has been served upon the respondent. Sd/- (Deepak Kumar Tiwari) Avinash Judge