1 2025:CGHC:13787 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 301 of 2024 1 - Arun Kumar Randive S/o Shri Tikaram Randive, Aged About 61 Years R/o Ward No.05, Village Dadar, Post Janjgiri, Tahsil Damdha, District Durg (C.G.) ... Petitioner(s) versus 1 - Kamal Kumar Chimnani S/o Shri Ramesh Lal Chimnani, Aged About 43 Years R/o Near Hanuman Mandir, Ward No.27, Banrang Ward, Bhatapara Shahar, Police Station Bhatapara, District Balodabazar-Bhatapara (C.G.) ... Respondent For Appellant : Mr. Vikram Pratap, Advocate on behalf of Mr. Raghvendra Pradhan, Advocate. For Respondent : Mr. Vikhyat Arora & Mr. Ankur Diwan, Advocate. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 22.03.2025 1. The appellant/complainant has filed this appeal assailing order dated 03.02.2024 passed by the learned Judicial Magistrate First Class, Bhilai-3, District- Durg (C.G.) in Complaint Case No. 600/2021 by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act has been dismissed for want of prosecution. 2. Case of the prosecution in brief is that the complainant and accused/respondent were friends, therefore, on request made by the accused/respondent, the appellant/complainant gave Rs. 5 lacs to the respondent as loan and when the complainant asked to the respondent to return back the money, the respondent gave a cheque bearing ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.03.22 16:46:11 +0530 2 cheque No. 954481 dated 24.03.2021 for Rs. 5 lacs payable at State Bank of India, Branch- Charoda, District- Durg. The said cheque was deposited by the complainant in the bank but the same was dishonoured on 28.05.2021 due to “payment stopped by drawer”. Thereafter, the complainant sent legal notice to the respondent in his address on 04.06.2021 which was received with the endorsement “left”. Thereafter, after following due procedure, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act before learned Judicial Magistrate First Class on 23.10.2021. The said court after taking cognizance of the complaint issue summon to the respondent/ accused for seeking his presence. On 28.01.2023, the respondent was not present, therefore, the learned trial Court issued arrest warrant against him and in pursuance of the same, the accused appeared before the trial Court on 16.05.2023. On 03.02.2024 the matter was called for hearing but due to absence of the complainant, the complaint filed by the complainant has been dismissed by the trial Court for want of prosecution. Being aggrieved with the order passed by the trial Court on 03.02.2024, the instant appeal has been preferred by the complainant. 3. Learned counsel for the appellant/complainant would submit that on 03.02.2024, the appellant/complainant was not available at Durg as he had gone to Balaghat (M.P.) for spending sometime after retirement, therefore, he could not appear before the trial Court, as such, the trial Court has dismissed the complaint filed by the complainant for want of prosecution. He would further submit that the mistake committed by the appellant/complainant is bonafide hence, the order passed by the learned trial Court on 03.02.2024 dismissing the complaint for want of 3 prosecution is perverse and illegal and would for setting aside the same. 4. Being aggrieved with the order dated 03.02.2024, the appellant preferred the petition bearing CRMP No. 915/2024 which has been converted into regular acquittal appeal vide this Court’s order dated 14.06.2024. 5. On the other hand, learned counsel for the respondent opposing the submission made by learned counsel for the complainant/appellant would submit that the mistake committed by the complainant is not bonafide and the story projected by the complainant is after thought story. On 03.02.2024, neither the complainant nor his counsel appeared before the trial Court, therefore, the learned trial Court vide impugned order dated 03.02.2024 dismissed the complaint filed by the complainant, which is just and proper which does not warrant any interference by this Court and would pray for dismissal of the appeal. 6. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 7. From perusal of record, it is quite vivid that non-appearance of the complainant on 03.02.2024 is bonafide as he was not available at Durg and looking to the facts of the case that the complaint was dismissed not on merit on 03.02.2024 but for want of prosecution, as such the complainant needed opportunity to participate in the proceedings. 8. Accordingly, the complaint case is restored to its original number and the impugned order dated 03.02.2024 is quashed. The trial Court is directed to decide the same on merits in accordance with law. 9. Since the parties have already appeared before this Court, as such no 4 notice is required to be issued by the trial Court and the parties are directed to appear before the concerned court on 08.05.2025 for further proceeding. The Registry is directed to transmit the record to the trial Court immediately. 10. With the aforesaid observation and direction, the instant appeal is allowed. Sd/- (Narendra Kumar Vyas) Judge Arun