1 2025:CGHC:22694 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 87 of 2025 1 - Narmada Prasad Kurre S/o. Late Atmaram Kurre Aged About 56 Years R/o. Dongri (Kathapalli), Tehsil And Police Station Baloda, District- Janjgir-Champa, Chhattisgarh (Complainant) ..Appellant. versus 1 - Dileram S/o. Late Meghuram Bharadwaj, R/o. Village Achanakpur, Tehsil And Police Station Baloda, Dist- Janjgir-Champa, Currently Residing At Ramnagar Para, S.E.C.L, Ward No. 27, Korba, District- Korba, Chhattisgarh.(Accused) ... Respondent(s) For Appellant : Shri Pankaj Singh, Advocate. For Respondent : None, though served. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 09/06/2025 1. Appellant/complainant has filed this appeal assailing the acquittal order dated 10.12.2024 passed by the Judicial Magistrate First Class, Akaltara, District – Janjgir - Champa, Chhattisgarh (CG) in Complaint case No.158/2019 whereby, respondent/accused was AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.06.10 10:19:07 +0530 2 acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881 (henceforth “the Act, 1881”). 2. Case of the complainant is that he has filed complaint case against respondent/accused for dishonour of cheque under Section 138 of the Act, 1881. On the subject date, when the case was listed for reply of the respondent, appellant/complainant did not appear on account of which, the complaint case was dismissed on 10.12.2024. 3. Learned counsel for the appellant would submit that on the subject date case was scheduled for reply of the respondent, therefore, there was no need for the presence of the appellant/complainant. Moreover, appellant’s counsel was occupied with another matter in different Court. He further submits that the learned trial Court adopted a hyper-technical approach while dismissing the complaint which is contrary to the settled principles laid down in the matter of Associated Cement Co. Ltd. vs. Keshvanand1 and referred para 17, which read 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 1 (1998) 1 SCC 687 3 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. 4. I have heard learned counsel for the appellant and perused the documents annexed with the appeal. 5. From perusal of order sheet dated 10th December, 2024, it is vivid that the case was listed for reply. Considering the facts and circumstances of the case, this Court is of the view that when there is no deliberate delay on the part of complainant in relation to progression of the case, learned Magistrate was not justified in dismissing the complaint and the view taken by the trial Court is unsustainable and as such, impugned order passed by the JMFC is quashed. 6. Accordingly, this Appeal is allowed. Complaint case filed by the complainant under Section 138 of the Act, 1881 is restored to its 4 original number. 7. Complainant/appellant as well as respondent/accused are directed to appear before the JMFC, Akaltara on 25.07.2025. 8. Appellant/complainant is at liberty to take suitable steps for issuance of notice to the respondent/accused before the trial Court for progression of his case, in accordance with law. 9. A copy of this judgment be sent to JMFC, Akaltara along with record of the trial Court forthwith. Sd/- (Deepak Kumar Tiwari) Judge Avinash