1 2025:CGHC:1508 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 765 of 2024 Moti Lal Dewangan S/o Chinta Ram Dewangan Aged About 37 Years R/o Quarter No. 221, Ward No. 24, Jagruti Chowk, Para, Camp 02, Bhilai, Police Station Chhawani, District Durg Chhattisgarh ... Appellant versus Jivan Lal Dewangan S/o Lt. Jagdish Dewangan Aged About 37 Years Resident Of Mahroom Kala, Police Station And Tehsil Khairagarh, District Rajnandgaon Chhattisgarh ... Respondent(s) For Appellant (s) : Mr. Vikash Pandey, Advocate For Respondent(s) : None Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 09/01/2025 1. Notice was issued to the respondent for his appearance on 25.11.2024 which has already been served on him but he did not chose to appear before this Court therefore, this court is proceeding further in the matter in his absence. SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.02.05 10:35:25 +0530 2 2. The appellant has preferred this acquittal appeal against the dismissal of complaint on 01.12.2022 filed under Section 138 of the N.I. Act by the learned Judicial Magistrate First Class Durg (C.G.). 3. The complainant has filed complaint mainly contending that cheque bearing No. 016954 for Rs. 3 lakhs was given by the respondent which was bounced and returned to the appellant with an endorsement that dishonored due to insufficient fund 15.04.2016. Thereafter, complainant has issued statutory notice to the respondent for payment of cheque amount which was neither replied nor payment was made. This has compelled the appellant to file complaint on 13.06.2016. 4. Learned counsel for the appellant would submit that the complaint was registered on 13.06.2016 and the complainant was regularly appearing before the trial Court and the matter was fixed for complainant’s evidence. On 19.10.2022 an application for exemption of the appellant was filed which was allowed and the matter was taken up on 18.11.2022, but on the said date also the evidence could not be led and matter was adjourned to 01.12.2022. On the said date, the complainant could not appear, therefore, the complaint was dismissed for want of prosecution on 01.12.2022. He would further submit that the learned trial Court has adopted hyper technical view in dismissing the complaint without considering the fact that the complaint is pending since 2016 and the complainant was vigilent to contest the case, but on the said date of hearing due to unavoidable reason neither he nor the counsel could appear therefore, the trial Court has dismissed the complaint, 3 which is illegal. He would further submit that against the order of dismissal of complaint, the appellant has preferred revision before the Sessions Judge, Durg which was registered as Criminal Revision No. 273 of 2022 which was dismissed as no illegality or infirmity has been found in the impugned order by the learned Sessions Judge Durg. Thereafter, the appellant has preferred CRMP No. 968/2023 before this Court, which was dismissed by this Court granting liberty to the appellant to avail the remedy available under the law. 5. Learned counsel for the appellant would submit that complainant has filed the complaint on 13.06.2016 through his counsel and he was regularly appearing in all the dates of hearing given to him, as such there is no default either from his counsel or by himself except on 18.11.2022 when the trial Court has dismissed the complaint for want of prosecution, therefore, he would pray for allowing the appeal. 6. I have heard learned counsel for the parties and perused the record of trial Court. 7. From the record, it is quite vivid that the complainant was due diligent to prosecute his case and since 2016 he has been representing his case through the counsel or himself, as such the finding recorded by the trial court in its order dated 01.12.2022 suffers from perversity. illegality and non application of mind. The trial court should have seen that the litigant who was prosecuting their case for such long period and all of sudden on one absent the case should have not been dismissed by the trial Court, this is nothing but arbitrariness, suffers from perversity illegality 4 which warrant interference by this Court. Accordingly, impugned order passed by the learned Judicial Magistrate Class dated 01.12.2022 dismissal of the complaint for want of prosecution is deserves to be set aside and it is set aside and the Complaint Case No. 4626/2016 restored to its original number. Consequently, the order dated 22.02.2023 passed by the learned Sessions Judge Durg is also quashed as the learned Sessions Judge has adopted hyper technical view in dismissing the revision by affirming the order without considering the entire facts and circumstances of the case. 8. Before parting with this case, this Court would like to direct District Judge Durg to issue proper instruction to the Judicial Magistrates who are dealing with the cases of Negotiable Instruments Act, 1881 and they should avoid dismissal of the complaint so lightly unless extreme condition is available on record. 9. Consequently, the Acquittal appeal is allowed by setting aside the order of trial Court and the complaint is restored to its original number. The parties are directed to appear before the trial Court on 04.03.2025. It is also directed that the trial Court will issue proper summon to the accused, though despite the service of notice by this Court, the accused has chosen not to appear before this Court. Sd/- (Narendra Kumar Vyas) Judge Santosh