1 2025:CGHC:19931 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 857 of 2024 • Shekhar Malhotra S/o. Shri Anil Kumar Malhotra Aged About 29 Years R/o. 239, Subhash Market, Zone-2, Khursipar, Bhilai, Tahsil And District - Durg (C.G.) ... Appellant versus • Smt. Lalita Chandrakar W/o. Gangadhar Chandrakar Aged About 40 Years R/o. Sector - 6, Street No. 29, Block - 02, Quarter No. 2/R, Bhilai, Tahsil And District - Durg (C.G.) ... Respondent For Appellant : Mr. Rudranath Mukherjee, Advocate For Respondent : Mr. Amitabh Verma, Advocate appears on behalf of Mr. Sudhir Kumar Verma, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 01/05/2025 1. As the respondent/accused has already represented, there is no need to issue the process accordingly, default is overruled. PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.05.02 17:35:03 +0530 2 2. With the consent of learned counsel for the parties, matter is heard finally. 3. The present Acquittal Appeal has been preferred under Section 378(4) of the Criminal Procedure Code against the judgment of acquittal dated 06.11.2019 passed by the Judicial Magistrate First Class, Durg in Complaint Case No.5974/2015, whereby the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 by invoking the power of Section 256 Cr.P.C. as on the date of appearance, the complainant has not made his appearance. 4. Necessary facts of the case are that the appellant/complainant has filed a complaint case making an averment inter alia that out of family relations, the complainant has advanced cash loan of Rs.3 lakhs and for the repayment of the same, the respondent/accused has given a cheque which got dishonoured. Thereafter, a legal notice was sent, however, even after the said notice, the payment was not made by the respondent. Hence, the complaint was filed. On the date of the hearing, the complainant was not present, so the said complaint case was dismissed and the respondent/accused was acquitted vide order dated 06.11.2019. 5. Learned counsel for the appellant submits that the impugned order is not just and proper. He further submits that the cheque has been drawn upon the account of the respondent/accused and considering the principle laid down in the matter of Mohd. Azeem vs. A. Venkatesh And Another1, the complaint case may be restored to its original number to meet the ends of justice. 1 (2002) 7 SCC 726 3 6. On the other hand, learned counsel for the respondent/accused opposed the aforesaid submission and would submit that the ratio laid down in the matter of Mohd. Azeem (supra) would not be applicable in the facts of the present case, as in the said matter, there is one single default in appearance on the part of the complainant. He also draws the attention of this Court to the order sheets of the trial Court, wherein it has been observed by the trial Court that though the case was pending since 2015, but on several dates i.e. on 28.01.2019, 30.07.2019 and 24.09.2019, neither the complainant nor his Advocate made his appearance, therefore, it appears that only to harass the respondent/accused, the complainant was deliberately not appearing in the said case. Lastly, he submits that the complainant has not made any effort for the progression of the case, therefore, looking to sole negligence on the part of the complainant, who was not bothered about his case, the trial Court has rightly closed the complaint case and acquitted the respondent/accused. 7. Having considered the submissions of learned counsel for the parties and particularly considering the order sheets of the trial Court, which reflect that there are several defaults on the part of the complainant who was not bothered for the progression of his case, though the respondent has regularly appeared in the Court, this Court is of the opinion that the trial Court has rightly applied its discretionary power under Section 256 of the Cr.P.C. and the view taken by the said Court is just and proper as there is a clear negligence on the part of the complainant himself and as such, no error of law and fact was committed. 4 8. Even before this Court, the appellant has not raised any substantial ground for restoration of this case, therefore, this Court further opines that when the Magistrate exercises his discretionary jurisdiction, the same should not be ordinarily interfered with. 9. Resultantly, this Appeal being bereft of any merit or substance, deserves to be and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Priyanka