1 2025:CGHC:45326 HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2642 of 2025 Suyash Sundrani S/o Shri S K Sundrani Aged About 27 Years R/o Moulshri Vihar Vip Road Raipur P.O.A Bablu Pradhan Aged About 29 Years S/o Usat Pradhan, R/o Ward-14, Padkipali Saraipali, District Mahasamund C.G. ... Petitioner versus Samir Banjare S/o Shri Radveersingh Banjare Aged About 25 Years R/o 110/1 Ward No. 13, Birkoni, Acchrihdeah, Distt. Mahasamund C.G. ... Respondent For the petitioner : Mr. Ajay Kumar Mishra, Advocate. Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 04/09/2025 1. The complainant/petitioner has filed this petition under Section 419(4) of BNSS seeking grant of leave to appeal. The prayer made in the acquittal appeal filed along-with the petition shows that he seeks a direction to set aside the impugned order 23.05.2025 passed by the Judicial Magistrate First Class, Raipur, District Raipur Chhattisgarh by which the Complaint Case No. 1973/2022 was dismissed for non-prosecution and seeking restoration of complaint case to its original number. 2 2. Learned counsel for the petitioner submits that since the complaint filed u/s section 138 of NI Act before the trial Court is dismissed for want of prosecution, the petition filed u/s 419(4) of BNSS can be disposed of in terms of an acquittal appeal and it is no longer necessary to seek special leave to appeal, because the complainant is considered victim and has statutory right to appeal under the proviso to Section 413 BNSS (Section 372 CrPC). 3. Having considered the submission made by learned counsel, this Court is inclined to dispose of this petition in terms of acquittal appeal. 4. By impugned order the learned trial Court invoking the power under Section 256 of the CrPC dismissed the said complaint which amounts to acquittal of the respondent/accused from the charge of committing the offence u/s 138 of N.I. Act. Hence this Appeal. 5. Learned counsel for the appellant/complainant submits that the complainant was continuously appearing before the learned trial Court. On the date of hearing i.e., 23.5.2025 the complainant was not present, the trial Court has dismissed the complaint in a mechanical manner only on a single default without any opportunity, which is not sustainable. He would submit that the counsel appointed by him did not inform him about the date of hearing due to which he could not appear before the trial Court on the date of hearing. Therefore, he prays to allow the appeal and to remit the matter to the concerned trial Court to decide the same on its own merits. 6. Heard learned counsel for the petitioner and minutely perused the impugned order and the record of the trial Court. 7. In the matter of Associated Cement Co. Ltd. vs. Keshvanand 1998) 1 SCC 687 the Hon’ble Supreme Court has held that Section 256 of the 3 Code imposes two constraints on the Court for exercising the power to dismiss 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 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.” 8. 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 as to whether or not the personal attendance of the complainant is 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. 9. The order sheets of the trial Court reflect that the complaint is pending since 2022 and on 23.5.2025 when the complaint was 4 dismissed it remained in evidence stage. Since as per the complainant the counsel appointed by him did not inform him about the date of hearing, he could not appear on 23.05.2025. So the trial court, without affording any opportunity, dismissed the complaint case only on single default of the complainant. In the complaint, it has been said that a cheque worth Rs. 3,00,000/- was bounced. The party should not suffer loss due to the mistake of the lawyer. In such circumstances, this Court is of the view that a strong case is made out in favour of the petitioner/complainant to restore the case and decide it on its own merits. 10. Consequently, the impugned order being unsustainable is hereby set aside and the complaint case is restored to its original number for hearing and disposal in accordance with law on merits. 11. Petitioner is directed to appear before the trial Court on 26th September, 2025. 12. The trial Court is directed to give full opportunity of hearing to both the parties and proceed with the matter on its own merits. 13. Resultantly, the Acquittal Appeal is allowed at the admission stage. 14. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/-S (Sanjay Kumar Jaiswal) Judge Rao