1 2025:CGHC:23502 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 536 of 2024 1 - Nirmal Chand Kothari S/o Umedchand Kothari, Aged About 49 Years R/o Post, Tehsil And District Rajnandgaon, Chhattisgarh. ... Appellant(s) versus 1 - Sagar Uikey S/o Rakesh Uikey, Aged About (Not Mentioned), R/o Gali No. 1, Near Bakri Kotha, Gauri Nagar, Tehsil and District Rajnandgaon, Chhattisgarh. ... Respondent(s) For Appellant (s) : Mr. Anuj Pandey, Advocate on behalf of Mr. S.S. Baghel, Advocate For Respondent(s) : None SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 12/06/2025 1. This Acquittal Appeal has been preferred against the order dated 5.10.2021 passed in Complaint Case No.1750/2018 by the Judicial Magistrate First Class, Rajnandgaon, whereby, by SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.06.13 14:55:10 +0530 2 invoking the powers under Section 256 of the Cr.P.C., the complaint case has been dismissed and the respondent/accused has been acquitted under Section 138 of the Negotiable Instruments Act. 2. Learned counsel for the appellant would submit that on the date of hearing, the evidence of the appellant/complainant’s side was closed and the case was fixed for the defence evidence. He submits that on the specific date, the respondent/accused was also not present, however, the trial Court, in a mechanical manner, dismissed the complaint case on account of non-appearance of the appellant. Since the complainant had already adduced evidence and further, as he has engaged a lawyer, his presence was not necessary on the date of hearing, the trial Court ought to have decided the case on merits. Hence, considering the above backdrop, the subject original case may be restored in the ends of justice. 3. Heard learned counsel for the petitioner and also perused the documents 4. 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 1 (1998) 1 SCC 687 3 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 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.” 5. Reverting back to the facts of the present case, it is explicit that the complainant has already examined his witnesses and the case was fixed for defence evidence. However, only on single default on 5.10.2021, when the complainant or his lawyer was not present before the trial Court, the trial Court, in a mechanical manner, closed the complaint case and acquitted the respondent/accused. 6. For the foregoing, this Court is of the view that the trial Court has not exercised its jurisdiction in a proper manner. Therefore, the impugned order is set-aside with a direction to the trial Court to restore the original case and proceed in the matter in accordance with law. 4 7. Parties are directed to appear before the trial Court on 29.7.2025. The complainant would be at liberty to make suitable efforts for appearance of the respondent/accused in accordance with law, as even after notice, no one has appeared on his behalf before this Court. 8. Record of the trial Court be sent back forthwith. 9. With the aforesaid obervations/directions, the Appeal is disposed of. Sd/- (Deepak Kumar Tiwari) Judge Shyna