1 2025:CGHC:5603 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1005 of 2024 1 - Nirmal Jain S/o Gyan Chand Jain Aged About 49 Years R/o Ward No.05, Dhamdha, District Durg Chhattisgarh. (Complainant) ... Appellant versus 1 - Kamlesh Jain S/o Parasmal Jain R/o Khandelawal Colony, Nearby The House Of Dr. Nemi Chopada, Durg District Durg Chhattisgarh. (Accused Person) ... Respondent For Appellant : Mr. Vikas Upadhyay, Advocate appears on behalf of Mr. Jitendra Gupta, Advocate For Respondent : Mr. Shikhar Bakhtiyar, 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 16.07.2024 passed by the learned Judicial Magistrate First Class, Dhamdha, District- Durg (C.G.) in Complaint Case No. 3760/2022 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 prosecution in brief is that the complainant had given Rs. 7,00,000/- to the respondent in January 2021 by cash as lend and the respondent had assured that the amount shall be returned back soon. On demanding the said amount, the respondent had given cheque No. 054405 to the complainant payable in Bank of India, Branch BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.02.06 11:21:32 +0530 2 Padmnabhpur, District Durg dated 13.12.2021 amounting to Rs. 7,00,000/-. 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 17.12.2021. 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 27.04.2024. On that date the complainant did not appear therefore, the matter was adjourned to 11.06.2024. On 11.06.2024, the complainant did not appear, therefore, the matter was adjourned to 16.07.2024. On 16.07.2024 also the complainant 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. 3. Learned counsel for the appellant would submit that the complaint was pending since 2021 and the same was dismissed on 16.07.2024 for want of prosecution whereas from 06.01.2022 to 21.02.2024, counsel for the complainant was sincerely prosecuting the case. 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 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 does 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 the case before the learned Judicial Magistrate 3 First Class from 06.01.2022 to 21.02.2024 and only in last three occasions, he remained absent, there must be some bonafide reason for his absence. Learned trial Court has taken hyper technical view while dismissing the complaint as the complaint is pending for since last four years thus, the order dated 16.07.2024 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 16.07.2024 passed by the learned Judicial Magistrate First Class, Durg is quashed. 7. Accordingly, 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 First Class, Dhamdha, Durg on 18th March, 2025 and thereafter the learned Court will proceed with the matter in accordance with law. 8. A copy of this order be sent to the learned learned Judicial Magistrate First Class, Durg for compliance. Sd/- (Narendra Kumar Vyas) Judge Bhumika