1 2025:CGHC:8713 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 967 of 2024 1 - Kundanmal Ranulal Parakh S/o Late Ranulal Parakh Aged About 59 Years Proprietor Of Vinay Parakh, R/o Sadar Bazar, Dhamtari, Post, Tehsil And District Dhamtari Chhattisgarh ... Appellant Versus 1 - Bhama Sahu W/o Keshav Sahu Aged About 45 Years R/o Bhama Construction, Rajgharana Hotel, Beyond Nahar Naka Chowk, Danitola Ward Nagri Road, Dhamtari Post, Tehsil And District Dhamtari Chhattisgarh ... Respondent For Petitioner : Mr. Shobhit Koshta, Advocate For Respondent : Mr. Umesh Pandey, Advocate SB : Hon'ble Shri Justice Narendra Kumar Vyas ORDER ON BOARD 19.02.2025 1. The appellant/complainant has filed this appeal assailing order dated 18.03.2024 passed by the learned Judicial Magistrate First Class, Dhamtari, District- Dhamtari (C.G.) in Criminal Case No. 560/2019 by which, the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed for want of prosecution. 2. Case of the prosecution in brief is that the respondent purchased gold ornaments from the appellant’s shop and in lieu of the same had made part payment of Rs. 13,000/- out of the total amount of gold ornaments worth Rs. 02,02,700/- and for the remaining amount, the respondent had issued a Cheque bearing no. 414436 dated 31.12.2018 in the name of the appellant amounting to Rs. 1,89,700/- payable in Andhra Bank, Branch - Dhamtari, District – Dhamtari which was dishonoured SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 for want of sufficient funds. Thereafter, appellant/complainant repeatedly approached the respondent for payment of the remaining amount of the gold ornaments purchased by him, but the respondent asked the appellant to deposit the said cheque after 30.01.2019. Thereafter, 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. 3. It is submitted that even after issuance of legal notice to the respondent, the remaining amount was not paid to the complainant being aggrieved of which, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act,1881 and the matter was listed before learned Judicial Magistrate First Class on 08.04.2019. Thereafter, the case was listed on different occasions, on which, the complainant did not appear before the learned Trial Court. On 06.09.2021, a non-bailable warrant was issued against the respondent and on 29.06.2022 also, a non-bailable warrant was issued on the new address of the complainant. Thereafter, on 18.04.2023, the complainant appeared before the Trial Court and the case was adjourned. Thereafter, on 18.03.2024, the complainant and the respondent did not appear 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. 4. Learned counsel for the appellant would submit that the complaint was pending since 2019 and the same was dismissed on 18.03.2024 for want of prosecution whereas from 08.04.2019 to 28.02.2024, counsel for the complainant was sincerely prosecuting 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, due to some inadvertent reason were unable to appear before the learned Trial Court, therefore, they could not appear before the trial court. 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 3 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 be to be quashed and would pray for restoration of the complaint/criminal case filed under Section 138 of the Negotiable Instruments Act, 1881. 5. 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. 6. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 7. From perusal of record, it is quite vivid that the complainant was sincerely prosecuting the case before the learned Judicial Magistrate First Class from 08.04.2019 to 28.02.2024 and only last two occasions, he remained absent, there must be some bona fide reason for his absence. The learned Trial Court has taken hyper technical view while dismissing the complaint, as the complaint is pending since six years thus, the order dated 18.03.2024 dismissing the complaint filed by the complainant for want of prosecution, is perverse and illegal, warranting interference by this court, as such, the impugned order dated 18.03.2024 passed by the learned Judicial Magistrate First Class, Dhamtari is hereby quashed. 8. Accordingly, the instant appeal is allowed. The complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 is restored to its original number. The complainant/appellant as well as respondent are directed to appear before learned Judicial Magistrate First Class, Dhamtari on 25th April, 2025 and thereafter, the learned Court will proceed with the matter in accordance with law. 9. A copy of this order be sent to the learned Judicial Magistrate First Class, Dhamtari for compliance. Sd/- (Narendra Kumar Vyas) Judge Dey