1 2025:CGHC:17260 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 90 of 2025 1 - Suresh Kumar Sahu S/o Jasgdish Prasad Sahu Aged About 37 Years R/o Village And Post-Tundri, Police Station-Bilaigarh, District- Sarangarh-Bilaigarh (C.G.) ...Appellant/Complainant. versus 1 - Sanjay Kumar Sonwani S/o Baldram Sonwani Aged About 35 Years R/o Village And Post- Tundri, Police Station- Bilaigarh, District- Sarangarh-Bilaigarh (C.G.). ...Respondent(s)/Accused. For Appellant : Shri Resham Lal Jaiswal, Advocate. For Respondent : Shri Himanshu Pandey, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 15/04/2025 1. Heard. 2. Appellant/Complainant has filed this petition under Section 419(4) of BNSS, 2023 for special leave to Appeal against the order of acquittal dated 05.02.2024 passed by JMFC, Bilaigarh in Complaint case No.294/22 whereby, respondent/accused was acquitted of the charges 2 under Section 138 of Negotiable Instruments Act, 1881. 3. Learned counsel for the appellant would submit that complaint case was filed on 07.05.2022 and on 29.05.2023 case was transferred to another Court. Thereafter, on the date of hearing i.e. 26.08.2023 though presence of complainant’s counsel was marked in the order sheet, but there was no signature of complainant’s counsel. He would further submit that as the case was transferred and no communication was sent to the complainant, therefore for the said reason counsel for the complainant might not have appeared in the said case which was dismissed for want of presence of complainant or his counsel on 05.02.2024. He would lastly submit that the absence is bona fide, therefore, the impugned order may be quashed and the matter may be restored to decide the same on merits. 4. Per contra, learned counsel for the respondent would support the order impugned. 5. I have heard learned counsel for the parties and perused the record with utmost circumspection. 6. The complaint filed under Section 138 of the Negotiable Instruments Act is triable under Chapter XX as a trial of summons cases by Magistrate. The procedure required to be followed in case of non-appearance of complainant or death of complainant, has been provided under Section 256 of the Code, which reads as under : "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. 7. A bare reading of the above provision makes it clear that the power vested in the Magistrate in this section is discretionary. Accordingly, either he may dismiss the complaint or adjourn the case. However, it is a settled legal position that this discretion should be exercised judiciously and not arbitrarily. 8. In the case at hand the case was transferred from one Court to another Court on 29.05.2023 and on such date, no counsel on behalf of the complainant has made appearance before the transferee Court. Therefore, the submission put forth by counsel for the complainant that as the case was transferred from one Court to another Court and for the said reason counsel for the complainant could not get informed about such transfer and could not appear for such reason, has some substance. 9. Considering the entire fact situation of the case, this Court is of the view that dismissal of complaint case in such a manner including the fact situation as discussed above would defeat the ends of justice and the very purpose of enactment of the said Section. 10.Consequently, this Appeal succeeds and is allowed. It is directed that the Complaint case be restored to its original number and the Trial Court is 4 directed to proceed with the trial and decide the case in accordance with law. 11. Since all the parties are represented here, they are directed to appear before the concerned Court on 08.05.2025. 12.Learned Magistrate shall make every endeavor to decide case expeditiously without being influenced by order of this Court. 13.Registry is directed to send back the record of the trial Court along with copy of this order forthwith. Sd/- (Deepak Kumar Tiwari) Judge Avinash AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.04.17 17:17:05 +0530