1 2025:CGHC:29894 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1071 of 2024 1 - M/s. Total Cares Enterprises Through Its Proprietor Shri Sanjay Sharan S/o Late Shri Nishikant Sharan Aged About 53 Years Office Address - Flat No. 1/15a, Green Valley, Junwani Post Office - Motilal Nehru Nagar Tahsil And District - Durg (C.G.) ... Appellant versus 1 - M/s. Vedant Bottliers Private Limited Through Its Director Rohit Kumar Resident Of - 511, Jodhpur Park Third Floor Kolkata West Bengal Pin - Code 700068 Current Address - First Floor 1983, Raajdanga Main Road Sector - E, Kolkata West Bengal Pin - Code 700107 2 - M/s Vedant Bottliers Private Limited Through Its Director Satish Appaji Sawant Resident Of - 511, Jodhpur Park Third Floor Kolkata West Bengal Pin - Code 700068 Current Address - First Floor 1983, Raajdanga Main Road Sector - E, Kolkata West Bengal Pin - Code 700107 3 - M/s Vedant Bottliers Private Limited Through Its Director Methil Shahsi Kumar Nayar Resident Of - 511, Jodhpur Park Third Floor Kolkata West Bengal Pin - Code 700068 Current Address - First Floor 1983, Raajdanga Main Road Sector - E, Kolkata West Bengal Pin - Code 700107 ... Respondent(s) For Appellant : Shri Siddharth Tiwari, Advocate. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 02/07/2025 1. Questioning the impugned order dated 9.7.2024 passed by the Judicial Magistrate, 1st Class, Bemetara District Bemetara dismissing the Criminal Complaint Case No.164/2024 filed under Section 138 of the KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.07.03 12:44:07 +0530 2 Negotiable Instruments Act, 1881, the present acquittal appeal has been filed by the appellant/complainant seeking setting aside of the said order and for restoration of the criminal complaint. 2. Necessary facts of the case are that the appellant/complainant has filed a complaint case against the respondents/accused and on the date of hearing, when the complainant or his counsel did not appear before the trial Court, the case was dismissed for want of prosecution. 3. Learned counsel for the appellant submits that the case is at the initial stage and the appellant/complainant has duly engaged a lawyer. However, on the date of hearing, when the complainant or his lawyer did not present before the trial Court, the case was dismissed for want of prosecution. As counsel for the complainant has not given any information to the complainant, absence of the complainant is bonafide. Considering this backdrop, he prays to allow the Appeal and remit the matter to the concerned trial Court to decide it on merits. 4. Heard learned counsel for the appellant and perused the impugned order and other documents annexed with the Appeal carefully. 5. In the matter of Associated Cement Co. Ltd. vs. Keshvanand1 the Hon’ble Supreme Court has held that Section 256 of the Code imposes two constraints on the Court for exercising the power for dismissing the complaint and provides as under:- “17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. The 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. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to 1 (1998) 1 SCC 687 3 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 the progress of the case and also whether the situation does not justify the case being adjourned 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 or is not necessary. 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 order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. 7. Reverting back to the facts of the present case, the case was fixed for appearance of the respondents/accused and earlier the appellant/ complainant has also paid process fee and bailable warrant has been issued against the respondents/accused, however, service has not been effected. On the date of hearing, when the complainant or his counsel did not appear, though he has engaged a lawyer, the case was 4 dismissed for want of prosecution. The reason assigned by the appellant/complainant regarding his non-appearance appears to be bonafide and therefore, his absence is condoned. 8. In the circumstances, this Court is of the view that a strong case is made out in favour of the complainant/appellant to restore the case to decide the same on its merits. 9. Consequently, the impugned order being unsustainable is hereby set aside. The complaint Case No.164/2024 is restored to its original file of the Judicial Magistrate 1st Class, Bemetara District Bemetara for hearing and disposal in accordance with law on merits. 10.Parties are directed to appear before the trial Court on 29 th August, 2025. The appellant is also directed to take suitable steps to secure the presence of the respondents/accused before the trial Court in accordance with law, as none appears on their behalf before this Court. 11. The trial Court is directed to proceed with the matter from the last date of hearing. 12.Resultantly, the Acquittal Appeal is allowed to the extent indicated above. 13.Let a copy of this judgment along with record be sent to the concerned trial Court forthwith. Sd/- (Deepak Kumar Tiwari) Judge Barve