1 2025:CGHC:43819 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 601 of 2019 Chandulal Sahu S/o Shri Virjhuram Sahu Aged About 70 Years R/o Village Khartuli, Post Khartuli, Police Station Arjuni, Tahsil And District Dhamtari, Chhattisgarh. (complainant). ... Appellant. versus Tarun Kumar Sahu S/o Shri Hemuram Sahu Aged About 40 Years R/o Village Khartuli, Post Pitiyadih, Police Station Arjuni, Tahsil Dhamtari, District Dhamtari, Chhattisgarh. (accused) ... Respondent(s) For Appellant : Shri Balraj Gupta appears on behalf of Shri Pushpendra Kumar Patel, Advocates. For Respondent : Shri Shivendu Pandya, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 29/08/2025 1. Questioning the impugned order dated 29.11.2018 passed by the Judicial Magistrate First Class, Dhamtari C.G, dismissing the Criminal Case No.826/2016 filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881, (for short “the Act, 1881”) on account of non- appearance of complainant on the said date of hearing, the present acquittal appeal has been filed by the appellant/complainant seeking setting aside of the said order and for restoration of the criminal AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.08.29 17:47:52 +0530 2 complaint. 2. Learned counsel for the appellant submits that on 10.09.2018, particulars of the offence were stated to the accused/respondent. Thereafter, case was listed on 12.10.2018 and on 14.11.18 and on both these dates, complainant/appellant along with his counsel appeared before the trial Court. On 12.10.18, on the request of counsel for the respondent/accused, the matter was adjourned and on the next date of hearing, though complainant was present, the case was further adjourned by mentioning that complainant has sought time for producing his evidence. Thereafter, on the next date of hearing i.e. 29.11.2018, when complainant and his counsel did not made appearance, the case was dismissed. He further submits that as there is singular default on the part of the appellant who has duly engaged a lawyer and there was no intention on his part to delay the proceedings as also to save the purpose of enactment of the Section 256 of the Code, this appeal may be allowed and the matter may be remitted to the concerned trial Court to decide it on merits. 3. Heard learned counsel for the parties and perused the impugned order and other documents annexed with the Appeal carefully. 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 1 (1998) 1 SCC 687 3 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 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. 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 4 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. 6. Reverting back to the facts of the present case, taking into consideration the facts and circumstances of the case and there is singular default on the part of complainant and for the reason that the complainant/appellant had regularly appeared before the trial Court on the earlier dates of hearing, this Court is of the view that a good case has been made out in favour of complainant/appellant to restore the case to decide the same on its merits. Ordered accordingly. 7. The reason assigned by the appellant/complainant for his absence is held to be sufficient reason for his absence. Accordingly, his absence is condoned. 8. Consequently, the impugned order being unsustainable is hereby set aside. The Criminal Case No.826/2016 is restored to its original file of the Judicial Magistrate First Class, Dhamtari C.G. for hearing and disposal in accordance with law on merits. 9. Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 10.Both the parties are directed to appear before the JMFC, Dhamtari on 09 th October, 2025. Sd/- (Deepak Kumar Tiwari) Avinash Judge