1 2025:CGHC:5655 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 948 of 2024 Kamna Boina Venkatnarayan S/o K. Chenchaiya Aged About 37 Years R/o Plot No. 138/2, Road No. 6, Maitrikunj Risali, Bhilai, Tahsil And District Durg Chhattisgarhm,...(Complainant) ... Petitioner(s) versus Prakash S/o Beni Prasad Aged About 40 Years R/o Block No. 3, J. Road, 18, Sector -6, Bhilai, Tahsil And District Durg Chhattisgarh. ... Respondent For Appellant : Mr. Gaurav Singhal, Advocate. For Respondent : Mr. A.K. Pansari, Advocate. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 30.01.2025 1. The appellant/complainant has filed this appeal assailing order dated 20.09.2022 passed by the learned Judicial Magistrate First Class, Durg, District- Durg (C.G.) in Complaint Case No. 10854/2019 by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act has been dismissed for want of prosecution. 2. Case of the complainant in brief is that the complainant had given Rs. 60,000/- to the respondent in July 2019 by cash as lend and the respondent had assured that the amount shall be returned back upto September, 2019. On demanding the said amount, the respondent had given cheque No. 148150 to the complainant payable in United Bank of ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.02.20 11:40:33 +0530 2 India, Branch- B-Market, Sector- 6 Bhilai dated 14.10.2019 amounting to Rs. 60,000/-. The said cheque was deposited by the complainant in the bank but the same was dishonoured and returned back to him with a note “Funds Insufficient”. Thereafter, the complainant sent legal notice to the respondent in his address which was received by him on 02.11.2019. Thereafter, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act and the matter was listed before learned Judicial Magistrate First Class on 22.04.2022. On that date the complainant did not appear therefore, the matter was adjourned to 27.06.2022. On 27.06.2022, the complainant did not appear, therefore, the matter was adjourned to 20.09.2022. On 20.09.2022 also the complainant did not appeared despite repeated calls, therefore, the complaint filed by the complainant has been dismissed for want of prosecution. This order has been assailed by the complainant in this appeal. 3. Learned counsel for the appellant would submit that the complaint was pending since 2019 and the same was dismissed on 20.09.2022 for want of prosecution whereas from 03.12.2019 to 17.03.2021, counsel for the complainant was sincerely prosecution the case. He would further submit that there is no deliberate default on the part of the complainant as the complainant as well as his counsel were out of station, therefore, they could not appear before the trial court on the said date. He would further submit that the learned trial court has adopted 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 the order passed by the learned trial Court is perverse, illegal and contrary to the material on 3 record, therefore, the same is liable be 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 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 from 03.12.2019 to 17.03.2021 and only last three occasions, he remained absent which is not deliberate as no material has been placed on record by the respondent to rebut the said contentions, as such the learned trial Court has taken hyper technical view while dismissing the complaint though the complaint is pending since last six years. Thus, the order dated 20.09.2022 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 20.09.2022 passed by the learned Judicial Magistrate First Class, Durg deserves to be quashed and it is quashed. 7. 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 4 First Class, Durg on 19th March, 2025 and thereafter the learned trial Court will proceed with the matter in accordance with law. 8. A copy of this order be sent to the learned Judicial Magistrate First Class, Durg for compliance. Sd/- (Narendra Kumar Vyas) Judge Arun