1 2025:CGHC:15755 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 700 of 2024 Krishan Kumar Tiwari S/o Shankar Prasad Tiwari Aged About 54 Years R/o Pendra Road, P.S. Gaurella, District Bilaspur, (Now Gaurella Pendra Marwahi) ... Petitioner(s) versus Amar Kesharwani R/o Kotma, Beriyar Road, Kotma, Ward No. 2, District - Annuppur, M.P. ... Respondent(s) For Appellant(s) : Mr. Hemant Gupta, Adv. For Respondent(s) : None. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 03.04.2025 1. Heard on application for condonation of delay (IA No.1/2023). 2. On due consideration, delay in filing the acquittal appeal is condoned. Application is allowed. 3. This Acquittal Appeal under Section 378 (4) of the Cr.P.C. has been preferred against the judgment dated 01.09.2018 passed by the Judicial Magistrate First Class, Pendra Road in Criminal Complaint Case No.528/2009 (Krishna Kumar Tiwari Vs. Amar Kesharwani), whereby, learned trial Court, due to non appearance of the complainant (appellant herein) on the date of hearing, dismissed the complaint and acquitted the Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.04.04 17:45:03 +0530 2 accused for the offence under Section 138 of the Negotiable Instrument Act 1881 (for short "NI Act"). 4. Learned counsel for the appellant submits that against the respondent/accused, the complaint was filed way back in the year 2009 and the same was registered under Section 138 of the NI Act on 10.09.2018. After adducing evidence by the parties, the case was listed for judgment on 27.08.2016, however, the accused was not present on the said date. Thereafter, the case was posted for judgment on several dates but the accused deliberately did not appear before the Court, therefore, the trial Court ordered for issuance of arrest warrant. Learned counsel for the appellant further submits that after issuance of arrest warrant, the complainant was in a bonafide belief that no further steps are required to be taken on his part, however, by the impugned order, the trial Court dismissed the case on account of non appearance of the complainant. Hence, in such backdrop, the impugned order is not sustainable and the same deserves to be set-aside. Learned counsel also submits that the matter may be remitted to the trial Court to decide the same on its own merits. 5. Heard learned counsel for appellant/complainant and perused the record with utmost circumspection. 6. Admittedly, the appellant/complainant filed a case against the accused under Section 138 of the NI Act in the year 2009 and cognizance has also been taken by the learned Magistrate under the aforesaid provision. Although the Magistrate has power to dismiss the complaint for absence 3 of the complainant/appellant by invoking the provision of Section 256 of the Cr.P.C, however, this power comes with a rider, which reads thus:- "256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 7. Taking into account the aforesaid proviso, it is vivid that the Magistrate can proceed with the case even in absence of the complainant and the concerned Court should not dismiss it under sub section (1) of Section 256 Cr.P.C., particularly when the Magistrate has already taken cognizance of the complaint case. 8. In the present case, initially, when the matter was listed for judgment, the accused remained absent even on several dates. Though on various dates, the complainant made appearance before the Court, however, only on the last date of hearing, when complainant was not present, learned Magistrate passed a mechanical order and dismissed the case on account 4 of his non appearance and ultimately, acquitted the accused for the offence under Section 138 of the NI Act. 9. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand [(1998) 1 SCC 687] the following observation was made with regard to Section 256 Cr.P.C.:- "......Two constraints are imposed on the court for exercising the power under Section 256. 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. 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 progress of the case and also whether the situation does not justify the case being adjoined 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." 10.In the matter of S. Rama Krishna Vs. S. Rami Reddy, (2008) 5 SCC 535, it has been observed that the provision of Section 256 (1) mandates the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out. The discretion conferred upon the 5 learned Magistrate, however, must be exercised with great care and caution. 11.In view of the aforesaid settled principles and considering the facts' situation of the case and considering the manner in which the complaint of the appellant was rejected, this Court is of the view that the order passed by the learned Magistrate is unsustainable and the same deserves to be and is hereby set-aside. 12.The complaint of the complainant/appellant is directed to be restored and trial Court is directed to proceed in the matter further, from the last stage of hearing, in accordance with law. 13.The appellant/complainant is directed to appear before the concerned Court on 6th May 2025. The complainant may also take necessary steps to advance his case in accordance with law. 14.In the result, the acquittal appeal is allowed to the extent indicated above. Sd/- (Deepak Kumar Tiwari) Judge Ajay