1 2025:CGHC:17321 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 864 of 2024 1 - Mahaveer Sahu S/o Shri Awadh Ram Sahu, Aged About 43 Years By Caste Teli, R/o Village Soram Post -Bhatgaon, Tahsil And District Dhamtari C.G. ...Appellant (s) versus 1 - Smt. Dropati Salam W/o Late Shri Gajendra Salam, Aged About 52 Years, R/o House No. 385, Behind Narhardev School, Sanjay Nagar Kanker, District North Bastar Kanker C.G., ... Respondent(s) For Appellant : Mr. Sunil Sahu, Advocate For Respondent(s) : None SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 15/04/2025 1. This Acquittal Appeal under Section 378 (4) of the Cr.P.C. has been preferred against the judgment dated 11.6.2024 passed by SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.04.17 10:50:52 +0530 2 the Judicial Magistrate First Class, Dhamtari (CG) in Criminal Case No.1361/2021 , whereby, the learned trial Court, due to non appearance of the complainant (appellant herein) on the date of hearing, dismissed the complaint and acquitted the accused for the offence under Section 138 of the Negotiable Instrument Act 1881 (for short "NI Act"). 2. Learned counsel for the appellant submits that the complaint case was filed way back in the year 2021. On 3.5.2024, the case was transferred to another Court. He further submits that after the transfer of the case in the transferree Court, neither the complainant nor his counsel was present on the dates of hearing for the reason that such transfer was not in their knowledge, therefore, his absence was not deliberate. However, by the impugned order, the trial Court dismissed the case on account of non appearance of the complainant. Considering the above backdrop, the appeal may be allowed and the case may be remitted to decide the same on its own merits by the trial Court. 3. Heard learned counsel for the appellant/complainant and perused the record with utmost circumspection. 4. The complaint filed under Section 138 of the Negotiable Instruments 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 the Code, which reads as under : 3 "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. 5. 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. 6. Considering the facts' situation of the case and considering the manner in which the complaint of the appellant was rejected, this Court is of the view that the impugned order passed by the learned Magistrate is unsustainable and the same deserves to be and is hereby set-aside. 7. Accordingly, the complaint of the complainant/appellant is directed to be restored and the trial Court is directed to issue notice to the 4 respondent/accused on payment of PF as per rules for his appearance before it. Thereafter, the trial Court is directed to proceed in the matter in accordance with law. 8. The appellant/complainant is directed to appear before the concerned Court on 24th of June 2025. The complainant may also take necessary steps to advance his case in accordance with law. 9. In the result, the acquittal appeal is allowed to the extent indicated above. Sd/- (Deepak Kumar Tiwari) Judge Shyna