1 2025:CGHC:28226 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.1036 of 2024 Sarojni Pande W/o Ram Pande Aged About 52 Years (Now) R/o Rawanbhata Ke Pas Shankar Para Ambe Chowk Supela Bhilai Durg District - Durg (C.G.) (Complainant) ... Appellant versus Rajkumar @ Rohit @ Goutam Aged About 45 Years C/o Bhagwat Ram Sen Rajiv Nagar Chandi Mandir Chouk Shinha Dharmshala Ke Piche W/d 2 Durg District - Durg (C.G.) (Initial Of The Respondent Is Not Properly Mentioned In The Impugned Order)(Accused) ... Respondent For Appellant : Shri Amit Nayak on behalf of Shri Avinash Chand Sahu, Advocates. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 26.06.2025 1. Questioning the impugned order dated 06.07.2022 dismissing Complaint Case No.RCC/2622/2019 passed by the Judicial Magistrate First Class, Durg, District Durg whereby, a complaint was filed against the Respondent under the provisions of Section 138 of the Negotiable Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.06.27 15:48:04 +0530 2 Instruments Act (for short ‘the NI Act’), 1881 invoking the power under Section 256 Cr.P.C, the present Acquittal Appeal has been filed by the Appellant for setting aside the said order and for restoration of the criminal case. 2. Brief facts of the case are that the Appellant/Complainant has filed a complaint case under Section 138 of NI Act, which has been dismissed by invoking the powers under Section 256 of the CrPC vide order dated 06.07.2022 and the Respondent/Accused was acquitted. Hence this Appeal. 3. Shri Nayak submits that the case was at the initial stage and fixed for the appearance of the Respondent/accused and the Appellant/Complainant has duly engaged an Advocate but on the date of hearing i.e. 06.07.2022, she could not make her appearance. He further submits that the trial Court has dismissed the complaint case and acquitted the Respondent/Accused taking the ground of non- appearance of the Complainant, which is not justifiable as the presence of the Complainant was not necessary and prays to allow the Appeal and restore the complaint case to meet ends of justice. 4. Heard learned Counsel for the Appellant and perused the impugned judgment carefully. 5. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, the following observation was made with regard to Section 256 Cr.P.C.:- 3 "......Two constraints are imposed on the court for exercising the power under Section 256. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accused. Second is, when the magistrate considers, that personal attendance of the complainant is not necessary on that day the magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjoined to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." 6. In view of the aforesaid legal provision, it is explicit that before proceeding to dismiss the complaint, in the absence of Complainant, in exercise of jurisdiction under Section 256 of the CrPC, it must be considered by the Court whether the presence of the Complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal attendance of the Complainant is necessary or not. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Section 256 of the CrPC would bar a fresh trial and therefore, such an order is of immense significance. The 4 order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. 7. Reverting to the facts of the present case, considering the fact that Complainant has duly engaged a lawyer and on the subject date of hearing, the case was fixed for appearance of the Accused, therefore, presence of Complainant was not necessary, and also considering the fact that the case is at the initial stage, this Court is of the considered opinion that the trial Court would not be justifiable in dismissing the complaint and a good cause has been shown by the Complainant/appellant to restore the case to decide the same on its merits. 8. Accordingly, the reason assigned by the Appellant/Complainant for her absence is held to be sufficient, which is hereby condoned. The complaint of the Complainant/Appellant is directed to be restored and the trial Court is directed to proceed with the matter further from the last stage of hearing, in accordance with law. 9. Both the parties are directed to appear before the concerned Court on 29th August 2025 and the Complainant may also take necessary steps to advance her case in accordance with law. 10. In the result, the Acquittal Appeal is allowed to the extent indicated above. 11. Record be sent back to the concerned trial Court with a copy of this judgment. 5 12. Further, Appellant/Complainant is directed to take suitable steps for ensuring appearance of Respondent/Accused in accordance with law as the notice could not be served upon him as he left the place. Sd/- (Deepak Kumar Tiwari) JUDGE Priya