1 2025:CGHC:16068 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 42 of 2025 1 - Atul Singh S/o Late Hulas Singh Aged About 30 Years R/o Village Akaltara District - Janjgir - Champa (C.G.) (Complainant) .. Appellant. versus 1 - Tejdas Baghel S/o Ramkumar Baghel Aged About 43 Years R/o Village Bana Tahsil Akaltara District - Janjgir - Champa (C.G.) At Present R/o Railway Colony House No. 22/3 Infront Of Shivam Hardware Police Station And Tahsil Akaltara District - Janjgir -Champa (C.G.) (Accused Person) ... Respondent(s) For Appellant : Shri NK Chatterjee, Advocate. For Respondent : Shri Santosh Kumar Verma, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 04/04/2025 1. This Acquittal Appeal has been preferred against the order dated 16.10.2024 passed by Judicial Magistrate First Class, Akaltara District Janjgir-Champa (Chhattisgarh) whereby, due to non-appearance of complainant, complaint case was dismissed for want of prosecution and AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.04.07 10:20:56 +0530 2 the respondent/accused was acquitted in Criminal Case No.40/2022. 2. Learned counsel for the appellant would submit that appellant has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (henceforth “the Act, 1881”) since the accused/respondent had taken amount of Rs.2,05,000/- from him and for the said purpose respondent/accused issued a cheque which was dishonoured. He further submits that on the date of hearing appellant went to the Court and also met his counsel who told him that his presence is not required and in such backdrop, complaint case has been dismissed. He submits that this appeal may be allowed to advance cause of justice. 3. Per contra, learned counsel for Respondent/accused would support the impugned order. 4. I have heard learned counsel for the parties and perused the documents annexed with the appeal carefully. 5. Admittedly, appellant/complainant filed a case against the respondent/accused under Section 138 of the Act, 1881. Although the Magistrate has power to dismiss the complaint case in absence of complainant/appellant by invoking provisions under Section 256 of The Code of Criminal Procedure, 1973 (henceforth “the Code, 1973”), however, his power comes with a rider which reads thus:- "256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to 3 adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the ofÏcer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 6. In view of the aforesaid proviso, it is vivid that the Magistrate can proceed with the case even in the absence of complainant and the concerned Court should not dismiss it under Sub-section (1) of Section 256 Cr.P.C., particularly when the complainant has already engaged an Advocate who has not made his appearance on the date of hearing. 7. Considering the laudable object of Section 256 Cr.P.C as the accused has already made appearance, therefore, in order to avoid hardship, this Court deems it appropriate to impose cost of Rs.5,000/- upon the complainant which shall be paid to the Respondent/accused by the complainant within a period of 15 days of this judgment. Ordered accordingly. 8. It is also directed that concerned complaint case be restored to its original number and the concerned trial Court is directed to proceed with the matter from the last stage of hearing in accordance with law subject to complainant’s depositing the aforesaid cost before the concerned Court or paying the same to the respondent/accused through his lawyer. 9. Both the parties are directed to appear before the concerned Court on 06.05.2025. 4 10.Complainant is further directed to take necessary steps to advance his case in accordance with law. 11.In the result, this Acquittal Appeal is allowed to the extent indicated above. Sd/- (Deepak Kumar Tiwari) Judge Avinash