1 2025:CGHC:31653 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 64 of 2025 1 - Rajesh Kumar Soni S/o Gulabchand Soni Aged About 35 Years R/o In Front Of Sarguja Sadan, Ward No. 26, Ambikapur, P.S. And Tehsil Ambikapur, District Sarguja, Chhattisgarh. ... Appellant versus 1 - Dilip Gupta S/o Arjun Gupta Aged About 30 Years R/o In Front Of Sarguja Sadan, Ward No. 26, Ambikapur, P.S. And, Tehsil Ambikapur, District Sarguja, Chhattisgarh. ... Respondent(s) For Appellant : Mr. Vidyabhushan Soni, Advocate For Respondent : Mr. Vikram Singh Vishwakarma, Advocate appears on behalf of Mr. Kaushalya Yadav, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 09/07/2025 1. Questioning the impugned order dated 10.01.2024 passed by the Judicial Magistrate First Class, Ambikapur, District Sarguja, whereby, Complaint Case No.711/2018 filed under the provisions of Section 138 PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.07.10 13:28:06 +0530 2 of the Negotiable Instruments Act, 1881 has been dismissed, the present acquittal appeal has been filed by the appellant/complainant for setting aside the said order and restoration of the complaint. 2. At the outset, learned counsel for the appellant/complainant submits that the case was listed for appearance of the appellant/complainant, but due to death of the counsel for the appellant, neither the complainant nor his Counsel appeared on the date of hearing and ultimately, the complaint case was dismissed. He would further submit that although the charges have already been framed on 10.12.2019 and subsequently, on 20.6.2023, the matter was posted for the complainant’s evidence, but it was wrongly posted on 20.06.2023 for stating the particulars of the offence. However, since on the said date, the complainant was not present, next date was given for his appearance. However, on the subsequent date of hearing, the complainant's lawyer passed away, leaving the complainant unaware of the status of the case. In such circumstances, the non-appearance of the complainant/appellant is bonafide, therefore, he prays to allow the appeal and remand the matter to the concerned trial Court for deciding the same afresh on its own merits. 3. Heard learned counsel for the appellant and perused the impugned order and other documents annexed with the Appeal carefully. 4. 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 1 (1998) 1 SCC 687 3 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.” 5. 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 whether the personal attendance of the complainant is or is not necessary. The discretion 4 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 explicit that the case was fixed for appearance of the appellant/complainant on the subject date, but on account of death of his Counsel neither the complainant nor his counsel was present. Hence, the trial Court dismissed the complaint by invoking the powers under Section 256 of the CrPC. 7. In such circumstances, this Court is of the view that a strong case is made out in favour of the complainant/appellant. 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 its own merits. 9. Both the parties are directed to appear before the trial Court on 29.08.2025 and the trial Court is directed to proceed with the matter further from the last stage of hearing, in accordance with law. 10.Resultantly, the Acquittal Appeal is allowed with no order as to cost(s). 11.Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- (Deepak Kumar Tiwari) Judge Priyanka