1 2025:CGHC:48387 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 651 of 2024 1 - Shree Balaji Appliances Through Proprietor, Rukamni Tapadia W/o Shri Anup Ji Tapadia, Aged About - 58 Years R/o D.A.-16, Chandela Vihar, District - Bilaspur Chhattisgarh ... Appellant versus 1 - Joshi Enterprises, Through Proprietor Yashwant Kumar, Address - Main Road, Haldi Badi, Chirmiri, Koriya Chhattisgarh ... Respondent For Appellant : Ms. Aishley Shrivastava, Adv., on behalf of Mr. Dhiraj Kumar Wankhede, Advocate. For Respondent : None Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 19/09/2025 1. This acquittal appeal U/s 378(4) CrPC has been filed questioning the impugned order dated 31.08.2023 passed by the Judicial Magistrate First Class, Bilaspur (CG) by which the Complaint Case No.1942/2021 filed by the appellant/complainant was dismissed due to non- prosecution, which amounts to the acquittal of the Respondent/accused from the charge of committing the BHOLA NATH KHATAI Digitally signed by BHOLA NATH KHATAI Date: 2025.09.23 10:19:25 +0530 2 offence under Section 138 of N.I. Act. 2. The appellant/complainant filed a complaint case which has been dismissed by invoking the power under Section 256 of the CrPC by learned Magistrate vide order dated 31.08.2023. Hence this Appeal. 3. Learned counsel for the appellant/complainant submits that the complainant was continuously appearing before the learned trial Court. Though on the date of hearing the complainant was not present, only on a single default without any opportunity, the trial Court has dismissed the complaint in a mechanical manner, which is not sustainable. He would submit that the counsel appointed by the complainant did not note the next date of hearing, therefore he could not appear on 31.08.2023 and the complainant could also not appear on account of Raksha Bandhan festival. Therefore, considering these grounds, for the ends of justice, he prays to allow the appeal and to remit the matter to the concerned trial Court to decide the same on its own merits. 4. Heard learned counsel for the appellant and perused the impugned order and other documents annexed with the Appeal carefully. 5. 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 power under the Section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing 3 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.” 6. 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 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. 7. Reverting back to the facts of the present case, it is evident that this is a cheque bounce case involving an amount of 4 ₹3,01,072. The complaint was filed on 24.08.2021 and registered on 30.09.2021. An order was issued for process fee to ensure the presence of the accused. The record reveals that despite being given several opportunities, the complainant did not pay the P.F. Prior to the dismissal of the complaint, no one from the complainant's side appeared on 09.11.2022 and 29.05.2023, yet opportunity was given by the trial court. According to the complainant, his lawyer did not note the next date of hearing, therefore he could not appear on 31.08.2023 and he (complainant) could also not appear due to Raksha Bandhan festival. So the trial Court, without any opportunity, dismissed the complaint case on the ground of default/absence of the complainant. In such circumstances, this Court is of the view that in the interest of justice, it would be appropriate to restore the case to decide on its own merits. 8. Consequently, the impugned order is hereby set aside and the complaint/criminal case is directed to be restored to its original file for hearing and disposal on merits in accordance with law subject to payment of cost of Rs.3,000/- before the DLSA, Bilaspur (CG) within a week from the date of receipt of copy of this order. 9. The petitioner is directed to appear before the trial Court on 14th October, 2025. 10. The trial Court is directed to give full opportunity of hearing to both the parties and then decide the matter on its own merits. 11. Resultantly, the Acquittal Appeal is disposed of with the aforesaid observation/direction, at the admission stage. 5 12. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Sanjay Kumar Jaiswal) Khatai Judge