1 2025:CGHC:23986 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 234 of 2022 Kamlesh Dhediya S/o Late Kantilal Dhediya, Aged About 46 Years R/o Station Road, District : Raipur, Chhattisgarh ...Appellant versus Santosh Yadav S/o Mohattar Yadav Aged About 43 Years R/o Vijay Soap Gali, Station Road, Fafadih Chowk, District : Raipur, Chhattisgarh --- Respondent _____________________________________________________________ For Appellant :Shri Nishant Swarnakar, Advocate For Respondent :None, though served ------------------------------------------------------------------------------------------------------- Single Bench:Hon'ble Shri Justice Sanjay S. Agrawal Order On Board 13.06.2025 1. The appellant/Complainant has preferred this appeal under Section 378 (4) of the Code of Criminal Procedure, 1973 questioning the legality and propriety of the order dated 03.05.2019, passed by the Judicial Magistrate First Class, Raipur (CG) in Criminal Case No.313/2011, whereby, the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act, 1881’), has been dismissed for non-prosecution. SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2025.06.13 18:57:46 +0530 2 2. Learned counsel appearing for the appellant submits that on 26.03.2011, the Complaint was filed by the appellant/ Complainant- Kamlesh Dhediya under Section 138 of the Act, 1881 and was continuously appearing in the said proceedings, however, owing to noting of the incorrect date of hearing of the said proceedings, the said proceeding was dismissed on default on 03.05.2019, though there was no malafide intention for his and his counsel’s non-appearance on the said date. 3. No one appears on behalf of the respondent, despite service of notice of this appeal. 4. From perusal of the record, it appears that a Complaint was filed by the appellant/Complainant under Section 138 of the Act, 1881 on 26.03.2011 and thereafter, the matter was directed to be listed on 19.04.2011 for arguments before its registration and, it appears further that on 19.04.2011, after considering the submission of the appellant/Complainant, the same was directed to be registered and the appellant was directed to pay the process fee for appearance of the respondent while fixing the case on 20.06.2011. It appears further that on 20.06.2011, the appellant/Complainant was appeared but, no one appeared on behalf of the respondent, though the summon was served upon him. It appears further that the appellant/Complainant was, however, again directed to pay the process fee for his appearance, while fixing the case on 17.08.2011. On 17.08.2011, the appellant/Complainant was appeared but, no one appeared on behalf of the respondent and the matter was directed to be listed on 11.10.2011 and on 11.10.2011, the appellant/Complainant was found to be appeared, while no one appeared on 3 behalf of the respondent and the matter was directed to be listed on 07.12.2011. It appears that in the meantime, an application was made by the respondent under Section 436 Cr.P.C.,which was considered by the concerned trial Court on 13.10.2011, while granting him bail upon furnishing bail bond of Rs.5,000/-. 5. Further order sheets of the concerned trial Court, would show that the appellant/Complainant was thereafter, continuously appearing in the said proceedings and, order sheet dated 04.08.2017 reveals the fact that the matter was received on transfer and after receiving the said proceedings, the concerned trial Court has directed for listing of the matter on 16.10.2017 and on the said date also, the appellant/Complainant was found to be present and the matter was directed to be listed 12.01.2018. It appears further that the appellant/Complainant was appearing through his counsel continuously, except on 08.02.2019, where he failed to mark his appearance and the matter was directed to be listed on 08.03.2019 for his appearance and, he accordingly, appeared through his counsel and thereafter, appeared further on 29.03.2019 and 15.04.2019 as well through his counsel. 6. From perusal of the aforesaid order sheets of the concerned trial Court, it, thus, appears that the appellant/Complainant was appearing continuously through his counsel right from the filing of the said Complaint Case under Section 138 of the Act, 1881, except to make his appearance on 08.02.2019, and, it appears further as stated by the counsel for the appellant duly supported by an affidavit that since the incorrect date was noted, therefore, neither he nor his counsel could appear on 03.05.2019 when the Complaint made by him was dismissed in default, though there was no malafide 4 intention behind it. The non-appearance of the appellant and his counsel on the said date, i.e. 03.05.2019, thus, appears to be occurred bonafidely and it cannot be said to be deliberate in nature. In view thereof, I am inclined to allow this appeal. 7. Accordingly, the appeal is allowed and the order impugned dated 03.05.2019 passed by the Judicial Magistrate First Class, Raipur in Criminal Case No.313/2011, is hereby set-aside and the Complaint (Kamlesh Dhediya Vs. Santosh Yadav) filed by the appellant/Complainant under Section 138 of the Act, 1881 is directed to be restored to its original number and the appellant/Complainant is directed to appear before the concerned trial Court on 11.08.2025 and the concerned trial Court, in turn, shall decide the said proceedings in accordance with law. Sd/- (Sanjay S. Agrawal) JUDGE sunita