1 2025:CGHC:11784 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 707 of 2024 1 - Dhaneswhar Prasad Diwakar, S/o. Mohit Ram Diwakar Aged About 52 Years R/o. Village - Kataut, Police Station Shivrinarayan, Tahsil Nawagarh, District - Janjgir - Champa (C.G.) ... Appellant versus 1 - Bajrang Prasad, S/o. Chhotelal Aged About 41 Years R/o. Village - Butapara, Domuhani, Police Station - Torwa, Tahsil And District - Bilaspur (C.G.) ... Respondent For Appellant : None For Respondent : Mr. Shashi Kumar Kushwaha, Advocate. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 10.03.2025 1. This appeal has been preferred by the appellant assailing the order dated 21.10.2022 passed by the learned Judicial Magistrate First Class, Bilaspur (C.G.) in NIA No. 391/2018 by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act, 1881”) has been dismissed for want of prosecution. 2. The brief facts as reflected from records are that the complainant filed a 2 complaint under Section 138 of the NI Act, 1881 alleging that he has entered into a deal with the accused to sell his land area 300 Sq.ft. for a sale consideration of 16,98,000/-, the accused had given a SBI cheque No. 995856 dated 28.01.2016 for Rs. 6,00,000/- which was drawn. Thereafter, the accused paid Rs. 6,00,000/- and Rs. 1,00,000/- in cash. He also issued a SBI cheque 132185 dated 02.02.2018 amounting Rs. 3,50,000/- which got dishonoured due to insufficient fund. The complainant sent a legal notice to the accused on 16.03.2018 but he did not return the amount to the complaint, which has compelled him to file complaint under Section 138 of the NI Act, 1881. 3. Learned trial Court after taking cognizance of the matter, issued notice to the accused. On 19.10.2022 and 21.10.2022, the complainant could not appear before the trial Court, therefore, the complaint under Section 138 of the NI Act, 1881 was dismissed for want of prosecution on 21.10.2022. 4. Being aggrieved with the order dated 21.10.2022, the appellant preferred the petition bearing CRMP No. 172/2023 which has been converted into regular acquittal appeal vide this Court’s order dated 30.07.2024, contending that due to some difficulty neither the complainant nor his counsel could appear before the learned trial Court. It has been further contended that the trial Court while passing the impugned order has failed to appreciate that on earlier occasions, the complainant’s counsel regularly appeared before the trial Court and non-appearance of the complainant before the trial Court on 21.10.2022 is bonafide, therefore, the order dated 21.10.2022 is illegal, erroneous and contrary to law which is liable to be quashed. 3 5. On the other hand, learned counsel for the respondent opposing the contention made by the appellant would submit that on 21.10.2022, neither the complainant nor his counsel appeared before the trial Court despite repeated calls, therefore, the learned trial Court has rightly dismissed the complaint filed by the complainant, which is just and proper which does not warrant any interference by this Court and would pray for dismissal of the appeal. 6. I have heard learned counsel for the respondent and perused the documents placed on record with utmost satisfaction. 7. From perusal of record, it is quite vivid that non-appearance of the complainant on 21.10.2022 is bonafide and looking to the facts of the case that the complaint was dismissed not on merit but for want of prosecution, as such the complainant needed opportunity to participate in the proceedings. 8. Accordingly, the complaint case is restored to its original number and the impugned order dated 21.10.2022 is quashed. The trial Court is directed to decide the same on merits in accordance with law. 9. The parties are directed to appear before the concerned court on 08.05.2025 for further proceeding. The Registry is directed to transmit the record to the trial Court immediately. 10. With the aforesaid observation and direction, the instant appeal is allowed. Sd/- (Narendra Kumar Vyas) Judge Deshmukh KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.03.11 18:07:20 +0530