1 2025:CGHC:50900 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1015 of 2024 1 - Rajesh Agrawal S/o Purushottam Das Agrawal Aged About 46 Years Proprietor At M/s RK Agrawal R/o Kharsiya Raigarh, Taluka - Kharsiya District Raigarh Chhattisgarh. (Complainant) ... Appellant versus 1 - Darshan Singh Thakur S/o Late Pitamber Singh Thakur Aged About 47 Years R/o Village - Khedapali, Post - Pusalda, Police Station - Chhal, Dharamjaigarh, Raigarh, Taluka Udaipur (Dharamjaigarh) District Raigarh Chhattisgarh. 2 - State Of Chhattisgarh Through District Collector, Raigarh, Taluka - Raigarh District Raigarh Chhattisgarh. (Accused) ... Respondents For Appellant : Mr. Suman Kesary, Advocate on behalf of Mr. Amit Sharma, Advocate. For Respondent No. 1 : Mr. Rakesh Kumar Sahu, Adv.on behalf of Mr. K.P.S. Gandhi, Adv. For Respondent No. 2/State : Mr. Sachchidanand Yadav, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 13/10/2025 1. This acquittal appeal U/s 378(4) of Cr.P.C. (corresponding Section 419(4) of BNSS, 2023) has been filed questioning HEERA LAL SAHU Digitally signed by HEERA LAL SAHU Date: 2025.10.14 14:32:24 +0530 2 the impugned order dated 11.10.2017 passed by the Judicial Magistrate First Class, Kharsiya, District Raigarh (CG) by which the Criminal Case No.233/2016 filed by the appellant/complainant was dismissed due to non- prosecution under Section 256 of CrPC, which amounts to the acquittal of Respondent No. 1/accused from the charge of committing the offence under Section 138 of N.I. Act. 2. 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, without any opportunity, the trial Court has dismissed the complaint in a mechanical manner, which is not sustainable. He would submit that the counsel for the complainant had noted the next date wrongly due to which he could not appear before the trial Court on the date of hearing. The complainant should not be punished for the fault of the counsel. 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. 3. Learned counsel for respondent No. 1 supported the impugned order and opposed the submissions made by the counsel for the appellant. 4. Heard learned counsel for the parties and perused the impugned order and other documents annexed with the Appeal carefully. 5. 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 3 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. 6. Reverting back to the facts of the present case, it is evident that this is a cheque bounce case involving an amount of ₹1,75,000. The complaint was filed on 05.04.2016 and registered on 13.05.2016. On 25.11.2016, the accused was released on bail. On 11.05.2017, particular of offence under Section 138 of N.I. Act has been framed. On 08.08.2017, the prosecution witnesses were not present. The complainant remained absent on the last date of hearing i.e. 11.10.2017. So the trial Court, without any opportunity, dismissed the complaint case on the ground of default/absence of the complainant. The complaint was dismissed solely in the absence of the complainant. It is a well-established principle of law that a party should not be penalized for any error committed by counsel and that every case should be finally decided on its merits. In such circumstances, this Court is of the view that a strong case is made out in favour of the appellant/complainant to restore the case to decide on its own merits. 7. Consequently, the impugned order being unsustainable is hereby set aside and the complaint case is directed to be restored to its original file for hearing and disposal on merits in accordance with law subject to payment of cost of Rs.2,000/- before the DLSA, Raigarh (CG) on or before 31st October, 2025. 4 8. Both the parties are directed to appear before the trial Court on 10th November, 2025 at 11:00 AM, sharply. 9. The trial Court is directed to give reasonable and sufficient opportunity of hearing to both the parties and then decide the matter on its own merits. 10. Resultantly, the Acquittal Appeal is allowed at the admission stage. 11. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Sanjay Kumar Jaiswal) H.L. Sahu Judge