1 2025:CGHC:27610 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.84 of 2025 Aarti Poddar W/o Alok Poddar Aged About 42 Years Proprietor Of Poddar Trading Company R/o Flat No. 103 (Wrongly Mentioned As Flat No. 03 In Impugned Order) Aadharshila Tower Near Chhattisgarh Hospital Mowa Raipur Tehsil And District - Raipur (C.G.) ... Appellant versus 1 - Siddhi Vinayak Tractor Parts Through Proprietor Naresh Tamrkar S/o Arjun Tamrkar Address At Siddhi Vinayak Tractor Parts Durg Road Main Road Dhamda District - Durg (C.G.) 2 - Naresh Tamrkar S/o Arjun Tamrkar Address At Siddhi Vinayak Tractor Parts Durg Road Main Road Dhamda District - Durg (C.G.) ... Respondent For Appellant : Shri Ankur Agrawal, Advocate. For Respondents : None for the Respondents, though served. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 25.06.2025 1. Questioning the impugned judgment dated 26.04.2024 dismissing Criminal Case No.6790/2022 passed by the Judicial Magistrate First Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.06.26 11:19:29 +0530 2 Class, Raipur whereby, a complaint was filed against the Respondents under the provisions of Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’), 1881 invoking the power under Section 256 Cr.P.C, the present Acquittal Appeal has been filed by the Appellant for setting aside the said judgment and restoration of the criminal case. 2. Shri Agrawal submits that a complaint case has been filed under Section 138 of the NI Act and the case was at the initial stage and fixed for the appearance of the Respondent/accused. He further submits that the case was transferred by the Court of CJM which has been recorded in the order sheet dated 22.04.2024 and on the said date, both the parties were not present and on the subsequent date i.e. 26.04.2024 also, neither the Complainant nor his Counsel could make their appearance but there was no deliberate default on the part of the Complainant and her presence was also not necessary and as such, no prejudice has been caused to the Respondent/accused. He, therefore, prays to allow the Appeal and restore the complaint case to meet ends of justice. 3. Heard learned Counsel for the Appellant and perused the impugned judgment carefully. 4. 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." 5. Drifting back to the facts of the present case, admittedly, the case was at initial stage and the Respondents/accused has not been served, therefore, no prejudice has been caused to him. Further, as the case was transferred from the Court of another Magistrate, therefore, in such backdrop, the order of dismissal would not be justifiable. 6. 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. 4 7. Accordingly, the complaint of the Complainant/Appellant is directed to be restored and the trial Court is directed to proceed with the matter further from the last stage of hearing, in accordance with law. 8. Both the parties are directed to appear before the concerned Court on 29th August 2025 and the Complainant may also take necessary steps to advance her case in accordance with law. 9. In the result, the Acquittal Appeal is allowed to the extent indicated above. 10. Record be sent back to the concerned trial Court with a copy of this judgment. Sd/- (Deepak Kumar Tiwari) JUDGE Priya