1 2025:CGHC:32676 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 608 of 2024 1 - Chhattisgarh Agency Through Proprietor Gulab Gupta S/o Shri G.S. Gupta, Aged About 45 Years, R/o Golbazar, P.S. - City Kotwali, District - Bilaspur (Chhattisgarh). ... Appellant versus 1 - Vishal Saraf Through Proprietor Vishal Enterprises Aged About 40 Years, R/o Mahitosh Chowk, In Front Of Anand Samaj Library, Kankhali Talab Road, Raipur, Police Station - Purani Basti Area, District - Raipur (Chhattisgarh). ... Respondent For Appellant : Mr. Aman Kesharwani, Advocate For Respondent : Mr. Mayank Kumar, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 14/07/2025 1. Questioning the impugned order dated 23.03.2021 passed by the Judicial Magistrate First Class, Bilaspur, dismissing the Complaint Case No.807/2015 filed under the provisions of Section 138 of the Negotiable PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.07.15 11:29:10 +0530 2 Instruments 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 complaint. 2. The appellant/complainant has filed a complaint case which has been dismissed by invoking the power under Section 256 of the CrPC vide order dated 23.03.2021. Hence this Appeal. 3. Learned counsel for the appellant submits that the case is listed for appearance of the accused, but on the date of hearing, parties were not present before the trial Court, so no prejudice has been caused. He would further submit that during the COVID pandemic, the proceedings of the trial Court has been stayed. Lastly, he submits that only on a single default the dismissal of the complaint would not be justifiable and prays to allow the Appeal and remit the matter to the concerned trial Court to decide it on its own merits. 4. On the other hand, learned counsel for the respondent would support the impugned order. 5. Heard learned counsel for the parties and perused the impugned order and other documents annexed with the Appeal carefully. 6. 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 1 (1998) 1 SCC 687 3 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 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.” 7. 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 4 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. 8. Reverting back to the facts of the present case, it is explicit that the case was fixed for appearance of the respondent/accused, but neither the accused nor the complainant was present, so the trial court dismissed the complaint by invoking the power under Section 256 of the CrPC. In such circumstances, this Court is of the view that a strong case is made out in favour of the complainant/appellant. 9. Consequently, the impugned order being unsustainable is hereby set aside and the complaint case is restored to its original file for hearing and disposal in accordance with law on merits. 10.Both the parties are directed to appear before the trial Court on 02.09.2025. 11.The complainant is directed to take suitable steps for the presence of the respondent/accused in accordance with law and the trial Court is directed to proceed in the matter on its own merits. 12.Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 13.Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Deepak Kumar Tiwari) Judge Priyanka