1 2025:CGHC:6989 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 993 of 2024 • Muskan Keswani W/o Shri Alok Keswani Aged About 44 Years Address M-35, Vikas Investment, Near Dr. Sudarshan, Rajeev Nagar, District - Raipur Chhattisgarh ... Appellant versus • Sulabh Israni S/o Shankar Israni, Proprietor - M/s Israni Hardware Store, Address - In Front Of Raj Talkies, Bombay Market Raipur Chhattisgarh ... Respondent For Appellant : Mr. Shobhit Mishra, Advocate For Respondent(s) : Mr. D.K. Gwalre, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 07.02.2025 1. The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order dated 02.05.2018 passed by the learned Judicial Magistrate First Class, Raipur, District - Raipur (C.G.) in Complaint Case No. 30501/2016 by which the complaint has been dismissed for want of prosecution and also against the order dated 23.11.2023 passed by the learned Judicial Magistrate First Class, Raipur, District - Raipur (C.G.) by which the application for restoration of the MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.02.25 15:36:57 +0530 2 complaint has been dismissed. 2. Brief facts as reflected from the record are that the complainant has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 on account of dishonor of cheque bearing No. 743916 for Rs. 3,00,000/- drawn at State Bank of India, Fafadih Branch, Raipur dated 14.06.2016. The complainant after receiving the intimation regarding dishonor of cheque has sent legal notice dated 05.07.2016 to the accused which has been received by him, but neither it has been replied nor the cheque amount was paid which has necessitated the complainant to file complaint on 17.08.2016. The Judicial Magistrate First Class Raipur (C.G.) registered the complaint on 13.10.2016 and notice was issued to the respondent for his appearance. The accused remained absent as no notice was served to the accused. Thereafter, matter was listed on 02.05.2018, on the said date the complainant could not appear therefore, the learned Judicial Magistrate First Class has dismissed the complaint. Being aggrieved with this order complainant has moved an application for restoration of the complaint before the learned Judicial Magistrate First Class on 25.10.2023 mainly contending that the counsel has not informed the progress of the case on the count that the file is not available with him. The learned Judicial Magistrate First Class vide order dated 23.11.2023 has dismissed the same on the count that the restoration of the complaint is not within the power of the JMFC accordingly, it has rejected the same. Being aggrieved with these orders the appellant has preferred this acquittal appeal. 3. Learned counsel for the appellant would submit that neither the 3 counsel nor the applicant appeared before the said date of hearing i.e. 02.05.2018. Thereafter, learned Judicial Magistrate First Class has taken up the matter at 12:00 PM, 01:30 PM, 3:00 PM and 4:45 PM and he has dismissed the complaint case by recording its finding that the complainant has shown disinterest to prosecute the complaint. This finding is illegal as the complainant was very much eager and prosecuting his case through his counsel, but subsequently the counsel has not informed the progress of the matter which has caused absence of the complainant, thus, he would pray for restoration of the complaint case. 4. Learned counsel for the appellant would submit that absence was bonafide and he would pray for restoration of the complaint case. He would further submit that trial Court has committed illegality in dismissing the application for restoration as he has shown sufficient cause for absence before the trial Court. 5. Per contra learned counsel for respondent oppose the submission and would submit that the complaint has been rightly dismissed as the appellant was remained absent on 16.02.2018, 14.03.2018, 13.04.2018 and thereafter on 02.05.2018, as such he cannot said that he was not aware of the proceedings and his absence was bonafide. He would further submit that under the Cr.P.C., no provision for recalling of the order has been conferred over Judicial Magistrate First Class, as such the learned trial Court has not committed any illegality in dismissing the application for restoration, thus, he would pray for dismissal of the acquittal appeal. 6. I have heard learned counsel for the parties and perused the 4 record. 7. From perusal of the record, it is quite vivid that the learned Judicial Magistrate First Class has taken up the matter on 02.05.2018 at about 12:00 PM, 01:30 PM, 3:00 PM and 4:45 PM, this practice adopted by the trial Court for dismissing the complaint on the count of absence by taking the matter 4 times in a day shows that the trial Court are bent upon to dismiss the complaint which this Court does not approve. Asccordingly, the order dated 02.05.2018 is quashed and the complaint is restored to its original number. 8. So far as order dated 23.11.2023 is concerned, no illegality has been committed by the trial Court in not restoring the complaint as the JMFC has no power to recall its own order, but considering the fact that since the original order dated 02.05.2018 is quashed by this Court, the subsequent order dated 23.11.2023 has lost its significance. Consequentially, complaint case is restored. 9. Since the appellant and respondent have already entered appearance, it is directed that they shall appear before the trial Court on 8th April, 2025 and thereafter, the proceeding will be conducted by the Judicial Magistrate First Class in accordance with law. 10. With aforesaid observation and direction, this acquittal appeal is allowed. Sd/- (Narendra Kumar Vyas) Judge Manish