1 2025:CGHC:22945 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.78 of 2025 Indrajeet Sinha S/o Tankeshwar Sinha Aged About 32 Years R/o Kumrawrd Near Krishi Mahavidhyalay Police Station And Tahsil Jagdalpur, District Bastar (Chhattisgarh). ... Appellant/Complainant versus Smt. Anjali Yadav W/o Jhitru Ram Yadav Aged About 35 Years R/o Village - Kumhli P.S. Bastar, Tahsil And District - Bastar, Chhattisgarh. ... Respondent/accused For Appellant : Smt Madhunisha Singh, Advocate. For Respondent : Shri Dinesh Yadav, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 10.06.2025 1. This Acquittal Appeal under Section 419 (4) of BNSS, 2023 has been preferred against the judgment dated 26.10.2024 passed by the Judicial Magistrate First Class, Bastar at Jagdalpur in Complaint Case No.523/2023 filed under the provision of Section 138 of the Negotiable Instruments Act, 1881 whereby, the Respondent/accused has been acquitted by invoking the power under Section 256 Cr.P.C. Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.06.11 18:06:53 +0530 2 2. Brief facts of the case are that the Complainant has filed a complaint case as he has advanced a cash loan amounting to Rs.2,50,000/- to the Respondent/accused and for repayment of the same, a cheque was given which, on being presented before the Bank, got dishonoured due to insufficiency of funds. Despite issuance of legal notice, when the payment was not done, the complaint case has been filed. The case was listed for appearance of the Appellant/Complainant on 04.09.2024 but as neither the Complainant nor his Counsel was present on the said date, therefore, the complaint case was dismissed for want of prosecution. 3. Smt Singh submits that the trial Court has not exercised its discretion in a proper manner as the case is at initial stage. She further submits that even the offence and particulars were not filed and the Complainant has duly engaged a Lawyer, therefore, on the said date, presence of the Complainant was not necessary and in such circumstances, the Magistrate has the power to dispense with the presence of the Complainant on a particular day and prays to allow this Appeal and restore the original case to be decided on merits. 4. On the other side, Shri Yadav supports the judgment impugned. 5. 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 3 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." 6. In view of the aforesaid legal principles, it is vivid that before proceeding to dismiss the complaint case for absence of the Complainant in exercise of jurisdiction under Section 256 Cr.P.C, it must be considered by the Court as to whether presence of the Complainant is really necessary and the Court should act judicially and not capriciously as a duty has been cast upon the Court to consider whether the personal attendance of the Complainant is necessary or not. 7. Considering the statutory provision in this regard as also the principles laid down by the Supreme Court relating to dismissal of the complaint in absence of the Complainant, if the facts of the present case are examined, it appears that the case was fixed for presence of 4 the Respondent/accused and the Complainant/Appellant through a duly engaged Lawyer. On the date of hearing, when the Respondent/accused himself was not present, no prejudice could be caused to him and as such, this Court is of the considered opinion that to meet ends of justice, the complaint case is required to be restored to its original number. 8. In view of above, the order passed by the learned Magistrate is hereby set-aside and the said complaint case is directed to be restored to its original number subject to payment of cost of Rs.2,500/- payable by the Complainant through his Counsel before the District Legal Services Authority, Jagdalpur within a period of 30 days on receipt of copy of this judgment. 9. The Appellant/Complainant is directed to appear before the concerned Court on 25th July 2025. He 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