1 2025:CGHC:35684 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 647 of 2019 1 - Cholamandlam Investment And Finance Co. Ltd. Reg. Office Dare House No. 2, Nsc Bose Road, Parrys, Chennai Branch Office 506,509, 5th Floor, National Corporate Park, Opp, Anupam Garden, G.E Road, Raipur, Chhattisgarh Through Authorized Officer, Prakash Verma, Aged About 35 Years S/o Bhagwat Prasad Verma, Mo. No.9981343191. (Complainant). ... Appellant. versus 1 - Bhupendra Kumar Sahu S/o Sh. N. R. Sahu Aged About 37 Years R/o 506, 5th Floor, Shubham Corporate, In Front Of Telibandha, Railway Crossing, Raipur Chhattisgarh. (Accused) ... Respondent(s) For Appellant : Shri RK Gupta, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 24/07/2025 1. This Acquittal Appeal has been filed against the order dated 07.03.2018 passed by the Judicial Magistrate First Class, Raipur C.G. in Complaint Case No.3809/2017 whereby, learned trial Court invoking the powers under Section 256 Cr.P.C. dismissed the complaint acquitting the respondent/accused of the charge under Section 138 of the Negotiable Instruments Act, 1881. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.07.24 16:29:02 +0530 2 2. Necessary facts of the case are that the appellant/complainant has filed a complaint case which has been dismissed by invoking the power under Section 256 of the CrPC vide order dated 07.03.2018. Hence this Appeal. 3. Learned counsel for the appellant/complainant would submit that on 10.02.2018 case was fixed for appearance of accused and the matter was posted before the National Lok Adalat. On such date, no one appeared, therefore, the matter was posted for hearing on 27.03.2018. He further submits that mistakenly hearing of the said matter was preponed on 07.03.2018. Though on the said date, the case was not listed as per the earlier order sheet and in the absence of complainant, the matter was dismissed for want of prosecution. Considering the backdrop, he prays to set aside the impugned order and remit the matter to the trial Court to meet ends of justice. 4. I have heard learned counsel for the appellant and perused the documents annexed with the appeal carefully. 5. In the matter of Associated Cement Co. Ltd. vs. Keshvanand1 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 the complaint and 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 Magistrate has the power to dispense with his 1 (1998) 1 SCC 687 3 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.” 6. In view of the aforesaid legal provision, it is explicit that before proceeding to dismiss the complaint, in the absence of complainant, in exercise of jurisdiction under Section 256 of the CrPC, it must be considered by the Court whether the presence of the complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal attendance of the complainant is or is not necessary. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Section 256 of the CrPC would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. 7. On perusal of the order sheet of the trial court, it is explicit that the matter was posted on 27.03.2018 on the earlier date of hearing i.e. 10.02.2018. However, on 07.03.2018, the matter was listed in the act of preponement 4 without any knowledge of the same to the complainant and the matter was dismissed for want of prosecution. 8. Taking into consideration the fact and circumstances of the case, this Court is of the opinion that a strong case is made out for restoration of the complaint to decide the same on merits. 9. The reason assigned by the appellant/complainant for his absence is held to be sufficient reason for his absence. Accordingly, his absence is condoned. 10.For the foregoing, the impugned order being unsustainable is hereby set aside. The complaint Case No.3809/2017 is restored to its original file of the Judicial Magistrate First Class, Raipur for hearing and disposal in accordance with law on merits, from the last date of hearing. 11.Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 12.Both the parties are directed to appear before the concerned trial Court on 09 th September, 2025. 13.Appellant/complainant is also directed to take suitable steps for presence of accused/respondent, in accordance with law. 14.Let a copy of this judgment be sent of the concerned trial court. Sd/- (Deepak Kumar Tiwari) Judge Avinash