1 2025:CGHC:17322 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.792 of 2024 Homandas Sonwani S/o Shri Bhagwandas Sonwani Aged About 45 Years R/o Village Kesla, Rawanbhata, P.S. Kharora, District Raipur Chhattisgarh ... Appellant/Complainant versus M/s AGR Infrastructure Through Arvind Kumar Tiwari, S/o Chhotelal Tiwari, R/o Block No.70, House No.835, Adarsh Chowk, Kabeer Nagar District Raipur Chhattisgarh ... Respondent/accused For Appellant : Shri Chetan Singh Chauhan, Advocate. For Respondent : Shri Balraj Gupta appears on behalf of Shri Devershi Thakur, Advocates. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 15.04.2025 1. This Appeal is directed against the impugned order dated 27.02.2023 passed by the Judicial Magistrate First Class, Raipur, dismissing Criminal Case No.3359/2019 for want of prosecution as a result of which, the Respondent/accused was acquitted of the charge Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.04.17 17:13:40 +0530 2 under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’). 2. The facts of the case in nut-shell are that on 06.05.2019, the Appellant/Complainant has preferred a complaint case, which was registered on 21.05.2019 under Section 138 of the NI Act. Though the matter was supposed to be fixed for evidence of the parties, however, as per the submissions of the parties regarding existence of chances of settlement, the matter was fixed for compromise and the case was taken up on 21.01.2023 i.e. Saturday and it being a holiday for the Court, the case was listed on 23.01.2023 on which date, Complainant and his Counsel were present and thereafter, on the next date of hearing i.e. 27.02.2023, no one was present, therefore, the complaint case was dismissed for want of prosecution. 3. Shri Chauhan submits that the Respondent/accused has taken time for compromise and the case was taken up on a closed day of the Court i.e. 21.01.2023, therefore, the Complainant was not aware of the date of hearing which was on 27.02.2023, therefore, the Counsel for the Complainant could not appear for the said reason and as such, the absence of the Counsel is bona fide and prays to allow the Appeal and remit the matter back to be decided on merits. 4. Per contra, Shri Gupta appearing for the Respondent supports the order impugned and submits that as the Counsel for the Complainant was negligent on his part, therefore, the trial Court has rightly dismissed the complaint. 3 5. Heard learned Counsel for the parties and perused the documents annexed with the Appeal with due care. 6. The complaint filed under Section 138 of the NI Act is triable under Chapter XX as a trial of summons cases by Magistrate. The procedure required to be followed in case of non-appearance of Complainant or death of Complainant has been provided under Section 256 of Cr.P.C which reads as under:- "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." A bare reading of the above provision makes it clear that the power vested in the Magistrate in this section is discretionary. Accordingly, either he may dismiss the complaint or adjourn the case. However, it is a settled legal position that this discretion should be exercised judiciously and not arbitrarily. 4 7. Reverting to the facts of the present case, admittedly, the complaint was filed in the year 2019 and the Respondent/accused sought further time for compromise and the matter was adjourned. Even on 21.01.2023 i.e. the earlier date on which, the case was taken up for hearing, was a closed day for the Court, therefore, the submission put forth by learned Counsel for the Appellant that for the said reason, the Counsel therein could not be present appears to be reasonable. 8. In view of above, this Court is of the opinion that dismissal of the said case on the facts and circumstances of the case stated above is not sustainable and the same deserves to be and is hereby set-aside. 9. The complaint of the Appellant/Complainant 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. The parties are directed to appear before the said Court on 08.05.2025 and the said Court shall conclude the proceedings of the complaint case strictly on its own merits in accordance with law without being influenced by any of the observations made herein. 10. Registry is directed to send back the record to the trial Court along with a copy of this judgment. 11. Accordingly, the instant Appeal stands disposed of. Sd/- (Deepak Kumar Tiwari) JUDGE Priya