1 2025:CGHC:29605 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.35 of 2024 Sudama Prasad Shukla S/o Sharda Prasad Shukla Aged About 65 Years R/o Green Park Colony, Jarhabhatha, P.S. Civil Line, Tahsil And District Bilaspur (C.G.) (Complainant) ... Appellant versus Avanish Tripathi S/o Lalbahadur Tripathi Aged About 37 Years R/o Gaori Ganesh Colony, Subham Vihar, P.S. Civil Line, Tahsil And District Bilaspur (C.G.) ... Respondent For Appellant : Shri Shyam Kumar, Advocate. For Respondent : Shri Rahul Mishra, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 01.07.2025 1. Questioning the impugned judgment dated 08.11.2023 dismissing NEGO.INST.Act/841/2015 passed by the Judicial Magistrate First Class, Bilaspur whereby, a complaint was filed against the Respondent under the provisions of Section 138 of the Negotiable Instruments Act (for Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.07.02 11:04:05 +0530 2 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 judgment and restoration of the criminal case. 2. Brief facts of the case are that the Appellant/Complainant has filed a complaint case under the provisions of Section 138 of the NI Act against the Respondent/accused and the trial Court, invoking the powers under Section 256 Cr.P.C on the date of hearing, holding that neither the Complainant nor his Counsel was present, has dismissed the same. 3. Learned Counsel for the Appellant submits that the matter was fixed for compromise and on the date of hearing i.e. 08.11.2023, the Complainant and his Counsel have appeared a bit late but the trial Court has dismissed the complaint case for non-prosecution. He further submits that the Respondent/accused himself has agreed and the matter was fixed for compromise and in such circumstances, dismissal of the complaint would not be justifiable and prays to allow the Appeal while restoring the complaint case to meet ends of justice. 4. On the other hand, learned Counsel for the Respondent supports the impugned judgment. 5. Heard learned Counsel for the parties and perused the impugned judgment carefully. 6. 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." 7. In view of the aforesaid settled principles and considering the facts and circumstances of the case and further considering that margin of the said order contains the signature of the parties and the reason assigned by the Appellant/Complainant with regard to his delayed presence, this Court is of the considered opinion that the order passed by the learned Magistrate is unsustainable and the same deserves to be and is hereby set-aside. 8. Accordingly, 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. 4 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 his 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. Sd/- (Deepak Kumar Tiwari) JUDGE Priya