1 2025:CGHC:9888 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 871 of 2024 Baldau Singh Chauhan, S/o Late Bullu Singh Chauhan Aged About 76 Years R/o Village Parsahi, Tehsil And District Bilaspur, (C.G.),...(Complainant) ... Petitioner(s) versus Shiv Prasad Soni, S/o Late Mahesh Prasad Soni R/o Rajiv Vihar, Loyala Road, Lingiyadih, Bilaspur, C.G., Tehsil And District Bilaspur, (C.G.),... (Accused) ... Respondent For Appellant : Mr. Sunil Kumar Soni, Advocate. For Respondent : Mr. Anand Mohan Tiwari, Advocate. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 27.02.2025 1. The appellant/complainant has filed this appeal assailing order dated 21.05.2024 passed by the learned Judicial Magistrate First Class, Bilaspur, District- Bilaspur (C.G.) in Complaint Case No. 1033/2023 by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act has been dismissed for want of prosecution. The appellant/complainant has also challenged the order dated 31.05.2024 by which the application for recalling the order dated 20.05.2024 & 21.05.2024 has been dismissed on the count that the court has become function officio as Judicial Magistrate First Class has no power to review its own order. 2. Case of the complainant in brief is that the appellant/complainant has filed an application under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate First Class, Bilaspur mainly ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.04.01 10:48:32 +0530 2 contending that complainant had sold the property to the accused described in the complaint for sale consideration of Rs. 20 lacs on 24.02.2023. Accordingly, the accused had given a cheque bearing No. 174997 dated 20.03.2023 for Rs. 5 lakhs drawn at State Bank of India Rajkishore Nagar, Bilaspur to the complainant as advance. The said cheque was deposited by the complainant in the bank but the same was dishonoured and returned back to the complainant due to “Funds Insufficient”. Thereafter, the complainant sent legal notice to the respondent on 24.05.2023 which was received by him on 26.05.2023. The accused has neither replied nor paid the amount of cheque to the complainant which has necessitated the complainant to file complaint under Section 138 of the Negotiable Instruments Act on 05.07.2022. On 21.05.2024, the complainant did not appeared despite repeated calls, therefore, the complaint filed by the complainant has been dismissed for want of prosecution. The appellant/complainant has also filed an application for recalling the order dated 20.05.2024 on 21.05.2024, which was also dismissed on 31.05.2024 on the count that the court has become function officio and has no power to review its own order. Both these orders have been assailed by the complainant in this appeal. 3. Learned counsel for the appellant would submit that the complaint was pending since 2023 and the same was dismissed on 21.05.2024 for want of prosecution though the complainant was prosecuting the case sincerely from 05.07.2023 to 04.03.2024. Even the complainant has appeared before the trial Court on the last date of hearing i.e. 02.05.2024. He would further submit that there is no deliberate default on the part of the complainant but the learned trial court has adopted 3 hyper technical view while dismissing the complaint whereas the learned trial Court should have given an opportunity to the complainant. He would further submit that on 20.05.2024, the appellant/complainant through his counsel appeared before the trial Court and put his signature on the order-sheet but in the order-sheet, it was mentioned that the complainant was absent. Accordingly, the complaint case was adjourned to 21.05.2024. On 21.05.2024, the complaint was dismissed for want of prosecution. The complainant moved an application on 31.05.2024 for recalling the order dated 20.05.2024 & 21.05.2024. He would further submit that the order passed by the learned trial Court is perverse, illegal and contrary to the material on record, therefore, the same is liable to be quashed and would pray for restoration of the complaint filed under Section 138 of the Negotiable Instruments Act. 4. On the other hand, learned counsel for the respondent opposing the submission made by learned counsel for the complainant/appellant would submit that the impugned order is legal and justified and do not warrant any interference by this Court. He would further submit that the appellant/complainant has remedy of filing revision, therefore, he should have filed revision before the appropriate forum and would pray for dismissal of the appeal. 5. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 6. From perusal of record, it is quite vivid that the complainant was sincerely prosecuting his case before the learned Judicial Magistrate First Class as such the learned trial Court has taken hyper technical view while dismissing the complaint though the complaint is pending 4 since last two years. Thus, the order dated 21.05.2024 dismissing the complaint filed by the complainant for want of prosecution, is perverse and illegal, warranting interference by this court, accordingly, the impugned order dated 21.05.2024 passed by the learned Judicial Magistrate First Class, Bilaspur deserve to be quashed and accordingly, it is quashed. 7. So far as order dated 31.05.2024 is concerned, it is in accordance with law hence the same does not warrant any interference by this Court but on account of restoring the complaint and setting aside the order dated 21.05.2024, it has lost its significance. 8. Resultantly, the instant appeal is allowed. The complaint filed by the complainant under Section 138 of the Negotiable Instruments Act is restored to its original number. The complainant/appellant as well as respondent are directed to appear before learned Judicial Magistrate First Class, Bilaspur on 28th April, 2025 and thereafter the learned trial Court will proceed with the matter, in accordance with law. 9. A copy of this order be sent to the concerned Judicial Magistrate First Class, Bilaspur for compliance. Sd/- (Narendra Kumar Vyas) Judge Arun