1 2025:CGHC:8490 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 394 of 2024 1 - Banchhor Machinery Works Through Its Proprietor- Kaushal Banchhor, S/o Rajendra Kumar Banchhor Aged About- 37 Years, Office- J Paket, 4 B Maroda Sector, Bhilai, District - Durg, Chhattisgarh. (Appellant / Complainant) ... Petitioner versus 1 - Gokul Varma S/o Bharat Bhusan Varma, Prop. Udit Associates, Office-J Paket, 51/a, Maroda Sector, Bhilai, District - Durg, Chhattisgarh. (Accused) ... Respondent For Petitioner : Mr. Prasoon Agrawal, Advocate For Respondent : Mr. Shalvik Tiwari, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 18.02.2025 1. The appellant/complainant has filed this appeal assailing the order dated 09.11.2022 passed by the learned Judicial Magistrate First Class, Durg (C.G.) in Criminal Case No. 7120 of 2019 by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act (in short “N. I. Act”) has been dismissed for want of prosecution and respondent/accused has been acquitted from the charges under Section 138 of the N. I. Act. 2. Case of the prosecution, in brief, is that complainant and respondent are known to each other and the respondent takes services and machinery from the organization of the complainant. The respondent in its business capacity has taken services of the complainant and for the aforesaid services the respondent had to pay an amount of Rs. 1,22,500/- which was pending as loan. The respondent in lieu of above BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.02.19 17:33:24 +0530 2 loan had given cheque No. 414078 to the complainant payable in State Bank of India, Branch- Indira Place, Bhilai dated 03.06.2018 amounting to Rs. 1,22,500/-. The said cheque was deposited by the complainant in the I.C.I.C.I., Branch- Risali, Bhilai but the same was dishonoured and returned back to him with a note “Funds Insufficient”. Thereafter, the complainant sent legal notice to the respondent in his address on 08.07.2019 which was neither replied nor payment was made which has necessitated the appellant to file complaint. Thereafter, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act and the matter was listed before learned Judicial Magistrate First Class on 26.11.2019 wherein the respondent/accused appeared and obtained bail from concerned trial Court. Thereafter, proceedings remained pending due to COVID Pandemic and thereafter the matter was listed on 29.04.2022 for framing of charges and the charges were framed against the respondent/accused and the matter was listed on 14.07.2022. On 14.07.2022 the complainant remained absent and thereafter the matter was listed on 25.07.2022. On 25.07.2022 proceeding was adjourned to 05.09.2022. On 05.09.2022 complainant appeared and prayed for time therefore the matter was adjourned to 14.10.2022. Thereafter the matter was taken up on 14.10.2022 and on that day right to lead evidence was closed and the matter was fixed on 09.11.2022 for statement of the accused. On 09.11.2022 complainant could not appear therefore, learned trial Court has dismissed the complaint for want of prosecution. This order has been assailed by the complainant in this appeal. 3. Learned counsel for the appellant would submit that the complaint was pending since 2019 and the same was dismissed on 09.11.2022 for want of prosecution whereas counsel for the complainant was sincerely prosecuting the case. He would further submit that the order passed by the learned trial Court is perverse, illegal and contrary to the material on record, therefore, the same is liable be to be quashed and would pray for restoration of the complaint filed under Section 138 of the Negotiable Instruments Act. 4. On the other hand, learned counsel for the respondent opposing the submission made by learned counsel for the complainant/appellant 3 would submit that the impugned order is legal and justified and does not warrant any interference by this Court and would pray for dismissal of the appeal. 5. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 6. From perusal of record, it is quite vivid that the complainant was sincerely prosecuting the case before the learned Judicial Magistrate First Class and only last two occasions, he remained absent, there must be some bonafide reason for his absence. Learned trial Court has taken hyper technical view while dismissing the complaint as the complaint is pending for the last five years thus, the order dated 09.11.2022 dismissing the complaint filed by the complainant for want of prosecution, is perverse and illegal, warranting interference by this court, as such, the impugned order dated 09.11.2022 passed by the learned Judicial Magistrate First Class, Durg is quashed. 7. Accordingly, the instant appeal is allowed. The complaint filed by the complainant under Section 138 of the Negotiable Instruments Act is restored to its original number. The complainant/appellant as well as respondent are directed to appear before learned Judicial Magistrate First Class, Durg on 27th March, 2025 and thereafter the learned Court will proceed with the matter in accordance with law. 8. A copy of this order be sent to the learned learned Judicial Magistrate First Class, Durg for compliance. Sd/- (Narendra Kumar Vyas) Judge Bhumika