1 2025:CGHC:16034 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 736 of 2024 Smt. Dr. Sunita Nimbalkar D/o Anil Nimbalkar Aged About 42 Years R/o Dolphin Pride, Shankar Nagar Near Khamhardih Railway Crossing Raipur, District Raipur, Chhattisgarh. ... Appellant versus Smt. Dipa Das W/o D. K. Das R/o I/10, R. D. A. Colony Raipur, District Raipur, Chhattisgarh. ... Respondent For Appellant : Shri Anway Tiwari, Advocate. For Respondent : Shri Akash Kumar Kundu, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 04.04.2025 1. With the consent of learned Counsel for the parties, the matter is hearing finally. 2. This Acquittal Appeal under Section 378 (4) of the Cr.P.C. has been preferred against the judgment dated 31.10.2022 passed by the Judicial Magistrate First Class, Raipur in Complaint Case No.266/2017 Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.04.08 14:25:27 +0530 2 whereby, learned trial Court, due to non appearance of the Complainant (Appellant herein) on the date of hearing, dismissed the complaint and acquitted the accused of the charge under Section 138 of the Negotiable Instrument Act 1881 (for short "NI Act"). 3. Shri Tiwari submits that cognizance and particulars of the offence have been recorded on 16.03.2020, thereafter, due to Covid pandemic situation, the Complainant could not be apprised of the hearing date and therefore, she could not appear on the said date for which, the complaint case was dismissed in a mechanical manner and prays to allow the Appeal. 4. On the contrary, Shri Kundu supports the judgment impugned. 5. Admittedly, the Appellant/Complainant has filed a case against the accused/Respondent under Section 138 of the NI Act 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 of the Complainant/Appellant by invoking the provision of Section 256 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 3 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." 6. The aforesaid proviso makes it clear 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. 7. In the instant case, on the date of hearing, when the Complainant was not present, learned Magistrate has passed a mechanical order and dismissed the case on account of her non appearance and ultimately, acquitted the accused of the charge under Section 138 of the NI Act. 8. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (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 4 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." 9. In the matter of S. Rama Krishna Vs. S. Rami Reddy reported in (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 learned Magistrate, however, must be exercised with great care and caution. 10. In view of the aforesaid settled principles and considering the facts' situation of the case and further considering the manner in which the complaint of the Appellant was dismissed, this Court is of the considered opinion that the order passed by the learned Magistrate is unsustainable and the same deserves to be and is hereby set-aside. 11. The complaint of the Complainant/Appellant is directed to be restored and trial Court is directed to proceed with the matter further from the last stage of hearing, in accordance with law. 5 12. The Appellant/Complainant is directed to appear before the concerned Court on 6th May 2025. The Complainant may also take necessary steps to advance her case in accordance with law. 13. In the result, the Acquittal Appeal is allowed to the extent indicated above. Sd/- (Deepak Kumar Tiwari) JUDGE Priya