1 2025:CGHC:23160 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.167 of 2022 1 - Murlidhar Devangan S/o Bhagwandeen Devangan Aged About 50 Years R/o House No.143, Ward No.11, Bhendi Kalan Rajnandgaon, District Rajnandgaon Pin 491441 ... Appellant/Complainant versus 1 - Mohammad Taj Jhadodiya S/o Mohammad Kasam Jhadodiya Proprietor Raj Marketing Juni Hatri, Rajnandgaon, District Rajnandgaon Pin 491441. ... Respondent/Accused For Appellant : Shri Pradeep Kumar Shrivastava, Advocate, appeared through Video Conferencing For Respondent : Shri Anuj Kumar Pandey appears on behalf of Shri S. S. Baghel, Advocate Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal Judgment On Board 11.06.2025 1. The appellant/complainant has preferred this appeal under Section 378(4) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the order dated 01.04.2022 passed by the learned Judicial Magistrate First Class, Rajnandgaon in Complaint Case No.3221/2018, whereby the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act, 1881”) has been dismissed for non-prosecution. 2. From perusal of the record, it appears that a complaint was filed by the appellant/complainant under Section 138 of the Act, 1881 on 24.11.2018 and the trial Court while registering the same has directed him to pay the SATISH TUMANE Digitally signed by SATISH TUMANE 2 process fee for appearance of the respondent and the case was accordingly fixed on 22.01.2019. The matter was thereafter listed for appearance of the respondent on various occasions and in the meantime, owing to imposition of lockdown due to outbreak of the Covid-19 Pandemic with effect from 08.04.2020, and the matter was kept in abeyance and it was taken up on 28.01.2021 and the appellant, who appeared through his counsel Shri Vinod Thakur, was directed to pay the process fee for issuance of notice to the respondent and the matter was directed to be listed on 25.03.2021. On the said day, i.e. 25.03.2021, the matter was transferred to some other Court while fixing the matter on 05.06.2021 for appearance of the respondent and, it appears further that the matter was thereafter listed from time to time and was listed also before the National Lok Adalat on 11.09.2021, however, none were present on the said day. The matter was, therefore, directed to be listed on 15.12.2021 and on the said day, the appellant was represented by his counsel Shri Sanjay Kumar Verma and the matter was directed to be listed for the appearance of the respondent on 11.03.2022 with a direction to the appellant to deposit the process fee for the said purpose. It, however, appears that when the matter was listed on 11.03.2022, neither the appellant nor his counsel was present and therefore, the matter was directed to be listed on 01.04.2022 for further proceeding. It appears further that on 01.04.2022, neither the appellant/complainant, nor his counsel was present, owing to which, the complaint filed by the appellant was dismissed for non-prosecution. 3. It is to be seen, as reflected from the grounds mentioned in the memo of appeal, that on 01.04.2022, counsel for the appellant, namely, Shri Vinod Thakur had some personal urgent work at Manpur, which is 77 Kilometers away from Rajnandgaon and therefore, he left Rajnandgaon at 7.00 AM 3 by his motorcycle so as to return back by noon, but, while returning from Manpur, the accelerator cable of his motorcycle was broken down and after repairing the same, he could return the Rajnandgaon at 5.00 PM. In support of his said contention, an affidavit was filed by him. 4. It, thus, appears from a bare perusal of the order-sheets of the trial Court that the appellant/complainant was found to be appeared through his counsel continuously for the period of more than three years and three months, except on few dates, as observed hereinabove, and his counsel has failed to appear on 01.04.2022 because of the said compelling circumstances, which was duly supported by his affidavit. The non- appearance of the appellant and his counsel on the said day, i.e. 01.04.2022, thus, appears to be occurred bonafidely and it cannot be said to be deliberate in nature. 5. In view of the aforesaid background, I am inclined to allow this appeal. 6. Accordingly, the appeal is allowed and the order dated 01.04.2022 passed by the Court of Judicial Magistrate First Class, Rajnandgaon in Complaint Case No.3221/2018 is hereby set aside and the complaint as filed by the appellant/Complainant under Section 138 of the Negotiable Instruments Act, 1881 is directed to be restored to its original number and the parties present over here are directed to remain present before the concerned trial Court on 28.07.2025, who in turn, shall decide the same in accordance with law. SD/- (Sanjay S. Agrawal) JUDGE Tumane