1 2025:CGHC:45529 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 366 of 2023 Juneja Enterprises Shop No. Fg-2, Rajeev Plaza, Bilaspur (C.G.) Through Proprietor(S), Sourabh Juneja, S/o Mukesh Kumar Junega, Aged About 35 Years, R/o Link Road, Near Navdeep Heiights, Infront Of Motilal Petrol Pump, Bilaspur Chhattisgarh. ... Appellant versus Saluja Computers Through Proprietor Shri Jasmit Raj Saluja, Office Address In Front Of Ganesh Trading Company, Telipara, Bilaspur (C.G.) Proprietor Address In Front Of Natraj Sweets, Manu Chowk, Bilaspur, Chhattisgarh. ... Respondent For Appellant : Ms. Aishley Shrivastava, Advocate on behalf of Mr. Dhiraj Kumar Wankhede, Advocate For Respondent : None Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 08/09/2025 1. This acquittal appeal U/s 378(4) of CRPC has been filed questioning the impugned order dated 31.08.2023 passed by the Judicial Magistrate First Class, Bilaspur(CG) by which the Criminal Case NEGO. INST Act 1749/2021 was dismissed due to non-prosecution under Section 256 of CrPC, which amounts to the acquittal of the SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.09.09 16:51:57 +0530 2 Respondent/accused from the charge of committing the offence under Section 138 of N.I. Act and also seeking for restoration of the Criminal Case NEGO. INST Act 1749/2021. 2. The appellant/complainant filed a complaint case which has been dismissed by invoking the power under Section 256 of the CrPC by learned Magistrate vide order dated 31.08.2023. Hence this Appeal. 3. Learned counsel for the appellant/complainant submits that the complainant was continuously appearing before the learned trial Court. Though on the date of hearing the complainant was not present, only on a single default without any opportunity, the trial Court has dismissed the complaint in a mechanical manner, which is not sustainable. He would submit that there was a genuine manual error perpetrated by the Complainant’s advocate, who missed to mark the next appearance date on the diary, therefore, the complainant failed to mark his presence on 31.08.2023. Therefore, considering these grounds, for the ends of justice, he prays to allow the appeal and to remit the matter to the concerned trial Court to decide the same on its own merits. 4. Heard learned counsel for the Appellant/Complainant and perused the record of the Trial Court. 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 3 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.” 6. Reverting back to the facts of the present case, it is evident that the complaint case has been pending since the year 2021. The complaint case was scheduled for hearing on 31.08.2023. Since as per the complainant the counsel appointed by him did not inform him about the date of hearing, he could not appear on 31.08.2023. So the trial court, without any opportunity, dismissed the complaint case. The lawyer's mistake should not cause loss to the party, rather the dispute should be resolved on the basis of merits. In such circumstances, this Court is of the view that a case is made out in favour of the appellant/complainant to restore the case and to decide it on its own merits. 7. The reason assigned by the appellant/complainant is held to be sufficient reason for his absence. Accordingly, his absence is condoned. 4 8. Consequently, the impugned order being unsustainable is hereby set aside and the complaint case is restored to its original file for hearing and disposal in accordance with law on merits. 9. The Petitioner is directed to appear before the trial Court on 9th October, 2025. 10. The trial Court is directed to proceed with the matter on its own merits. 11. Resultantly, the Acquittal Appeal is allowed. 12. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Sanjay Kumar Jaiswal) Shubham Judge