1 2025:CGHC:22927 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 890 of 2024 1 - Barmecha Taxtiles Through Proprietor, Kailash Barmecha, Aged About 43 Years, R/o Gandhi Chowk, Durg, Tahsil And District Durg Chhattisgarh. ...Appellant/Complainant. versus 1 - Prahlad Dewangan S/o Raju Lal Dewangan Aged About 32 Years R/o Jaikara traders House , Baraipara, Durg, Tahsil And District Durg Chhattisgarh. ... Respondent/Accused. For Appellant : Shri Vinod Kumar Sharma, Advocate. For Respondent : Shri Tarun Dansena, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 10/06/2025 1. This Appeal has been filed against the impugned order dated 08.09.2023 passed by the Judicial Magistrate First Class, Durg, Chhattisgarh in Complaint case No.1509/2014 whereby, learned trial Court, exercising its powers under Section 256 Cr.P.C., AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.06.11 19:03:43 +0530 2 acquitted the respondent/accused of the charges under Section 138 of the Negotiable Instruments Act, 1881. 2. Brief facts of the case are that complainant has filed a complaint case, by making averments, inter alia that he is a merchant doing business of wholesale clothes at Durg and respondent/accused was his regular customer. It has been further averred that respondent/accused purchased clothes on credit from his shop on 27.12.2013 amounting to Rs.44,276/- and on 08.05.2013 of Rs.16,213/-, in aggregate, Rs.60,489/-. For part payment, respondent/accused gave a cheque to appellant amounting to Rs.16,980/- dated 05.12.2013, which got dishonoured on account of insufficiency of funds. Thereafter, a legal notice was sent to respondent/accused, however, despite receiving the said notice, amount was not paid, therefore, a complaint case was filed on 10.02.2014, which was dismissed for want of prosecution on 08.09.2023. Hence this petition has been filed. 3. Learned counsel for the appellant/complainant would submit that trial Court has not exercised its discretion in proper manner as the complaint case was filed way back in the year 2014 and the respondent/accused was absent several times, because of which, the case did not progress. He would further submit that there is no fault on part of the complainant. He would place reliance on the judgment passed by the Hon’ble Supreme Court in the matter of M/s. BLS Infrastructure Limited vs. M/s. Rajwant Singh & 3 Others1 and prays to set aside the order impugned and restore the original case to decide the same on merits. 4. Per contra, learned counsel for the respondent/accused would support the order impugned and would submit that the case was listed several times for evidence of the complainant and accused was regularly appearing for about 10 years but the complainant did not examine his witnesses and is harassing the accused. He would further submit that to save the interest of respondent/accused for expeditious trial, the trial Court has rightly exercised its jurisdiction under Section 256 Cr.P.C. and prays to dismiss this appeal. 5. I have heard learned counsel for the parties and perused the documents annexed with the appeal. 6. In the matter of Associated Cement Co. Ltd. vs. Keshvanand2 the Hon’ble Supreme Court has held that Section 256 of the Code imposes two constraints on the Court for exercising the power for dismissing complaint, which provides as under:- “17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the 1 Criminal Appeal Nos.657-664 of 2023, dated 01.03.2023. 2 (1998) 1 SCC 687 4 Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 7. Reverting to the facts of the present case, admittedly, the complaint case was filed way back on 10.02.2014 and the case was listed several times for complainant’s evidence since 2015. On 19.07.2023, complainant did not produce any evidence and the case was again listed for complainant’s evidence on 08.09.2023. On the said date also, neither complainant nor his witnesses were present though the case was taken up twice. In such circumstances, trial Court acquitted the respondent/accused invoking its jurisdiction under Section 256 Cr.P.C. as on the said date, the respondent/accused was present and for the progression of the complaint case, presence of the complainant 5 was necessary. 8. Since the complaint case is pending for several years and the complainant himself was not diligent towards progression of his case, in such circumstances, this Court is of the opinion that the view taken by the trial Court while applying the aforesaid provision is possible one which does not warrant any interference. 9. In the result, this Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Avinash