1 2025:CGHC:17736 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.74 of 2025 Surendra Kumar S/o Tulsi Ram Aged About 29 Years R/o Village Nagar Panchyayat Bhakhara Bhatheli, Tehsil Bhakhara, District Dhamtari (C.G.). ...Appellant/Complainant versus Anklahu Ram S/o Sukhdev Aged About 43 Years R/o Village Darripara, Tehsil Bhakhara, District Dhamtari (C.G.). ... Respondent/accused For Appellant : Shri Shishir Dixit, Advocate. For Respondent : Shri Ashish Sahu, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 17.04.2025 1. This Acquittal Appeal under Section 419 (4) of BNSS, 2023 has been preferred against the judgment dated 16.12.2024 passed by the Judicial Magistrate First Class, Kurud, District Dhamtari in Criminal Case No.1401/2022 whereby, learned trial Court, due to non appearance of the Complainant (Appellant herein) on the date of Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.04.21 11:08:58 +0530 2 hearing, dismissed the complaint and acquitted the accused invoking the power under Section 256 Cr.P.C. 2. Shri Dixit submits that the Appellant/Complainant has duly engaged an Advocate and on the date of hearing, the case was not fixed for final arguments but was fixed for hearing on the application under Section 91 Cr.P.C filed by the Respondent/accused, therefore, power under Section 256 Cr.P.C was not exercised in a judicious manner and the trial Court has wrongly dismissed the complaint on 16.12.2024. He, therefore, prays to allow the Appeal. 3. On the other side, Shri Sahu supports the judgment impugned. 4. Admittedly, the Appellant/Complainant has filed a case against the accused/Respondent under Section 138 of the Negotiable Instruments Act, 1881 and cognizance has also been taken by the learned Magistrate under the aforesaid provision. Although the Magistrate has power to dismiss the complaint for absence of the Complainant/Appellant by invoking the provision of Section 256 Cr.P.C, however, this 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 adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer 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." 3 (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." 5. The aforesaid proviso makes it clear that the Magistrate can proceed with the case even in absence of the complainant and the concerned Court should not dismiss it under sub section (1) of Section 256 Cr.P.C. particularly when the Magistrate has already taken cognizance of the complaint case. 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.:- "......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 4 exercised judicially and fairly without impairing the cause of administration of criminal justice." 7. In the matter of S. Rama Krishna Vs. S. Rami Reddy reported in (2008) 5 SCC 535, it has been observed that the provision of Section 256 (1) mandates the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out. The discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. 8. In the instant case, on the date of hearing, the matter was listed for arguments only on interlocutory application and the Appellant/Complainant has duly engaged an Advocate also, therefore, the dismissal of the case on account of his non-appearance was not sustainable. 9. In view of the aforesaid settled principles and considering the facts and circumstances of the case and further considering the manner in which the complaint of the Appellant was dismissed, 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. 10. The complaint of the Complainant/Appellant is directed to be restored and trial Court is directed to proceed with the matter further from the last stage of hearing, in accordance with law. 11. The Appellant/Complainant is directed to appear before the concerned Court on 6th May 2025. The Complainant may also take necessary steps to advance his case in accordance with law. 5 12. In the result, the Acquittal Appeal is allowed to the extent indicated above. 13. Record be sent back to the concerned trial Court with a copy of this judgment. Sd/- (Deepak Kumar Tiwari) JUDGE Priya