1 2026:CGHC:6881 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 89 of 2018 Pradeep Kumar Gupta S/o R. B. Gupta Aged About 33 Years R/o- Kailash Nagar Plot No. 11, Near M.P. Christian College, Bhilai Nagar, District- Durg, Chhattisgarh, ... Appellant versus K. Nokaiya R/o- Quarter No. 3, B- Road 10, Sector-8, Bhilai Nagar, Police Station- Bhilai Nagar, District-Durg, Chhattisgarh. ... Respondent For Appellant : Mr. Aditya Shrivastava, Advocate on behalf of Mr. B.P. Singh, Advocate For Respondent : None Hon’ble Shri Justice Radhakishan Agrawal Order on Board 06/02/2026 1. This is an acquittal appeal filed under Section 378(4) of the Cr.P.C. by the complainant/appellant against the order dated 29.06.2017 passed by the Judicial Magistrate First Class, District – Durg (C.G.), in Complaint Case No.954/2013 filed under Section 138 of the Negotiable Instrument Act, 1881 which has been dismissed as the complainant was not present on 29.06.2017 by the said Court. PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2026.02.06 17:10:02 +0530 2 2. The brief facts of the case is that the complainant/appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent/accused. It is alleged that the accused has issued a cheque amounting to Rs.5,50,000/- in favour of the appellant. Upon presentation of the said cheque, the same got dishonoured by the bank on account of insufficiency of funds. Consequently, the complainant initiated proceedings against the accused under Section 138 of the Negotiable Instruments Act, 1881. The learned Trial Court, after recording the statement of the complainant, registered the complaint case under Section 138 of the Negotiable Instruments Act. The said allegations were, however, denied by the accused/respondent. 3. The order sheets of the Trial Court reveal that on 24.12.2016 and 23.02.2017, counsel for the appellant/complainant was present before the Court; however, the accused remained absent on both dates and no representation was made on his behalf. Consequently, the learned Trial Court issued a bailable warrant against the accused. Thereafter, on 10.04.2017 and on subsequent dates, the matter was fixed for the presence of the complainant, but neither the complainant nor his counsel appeared. Accordingly, the learned Trial Court dismissed the complaint case on dated 29.06.2017 for want of prosecution. Aggrieved thereby, the present appeal has been filed by the appellant. 3 4. Learned counsel for the appellant/complainant submits the impugned order dated 29.06.2017 is perverse, illegal, erroneous and contrary to the material available on record. He further submits that the learned trial court, while passing the impugned order, failed to appreciate that the complainant appeared along with his counsel on earlier dates of hearing and accused was not present. In such circumstances, the adoption of a rigid and technical approach was wholly unwarranted, and the complaint ought not to have been dismissed at the instance of non- appearance. On the aforesaid grounds, it is submitted that the impugned order deserves to be set aside and the complaint be restored for adjudication on merits. 5. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:- “18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. 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 4 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 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.” 6. Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding under the Act, 1881, due to single default in appearance on the part of the complainant/appellant, the dismissal of the complaint case is not proper, legal and justified. 7. A perusal of the order sheet of the Trial Court dated 29.06.2017 reveals that on the said date the case was fixed for the presence of the complainant but he remained absent. Accordingly, the learned Trial Court dismissed the complaint for non-prosecution. 8. It is pertinent to mention here that dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) CrPC. From perusal of the order-sheets of the 5 trial Court, it is seen that on the earlier dates of hearing the complainant was present in person or through his counsel. As such, it cannot be said that the complainant was not interested in pursuing his case and unnecessarily remained absent to hamper the course of justice. This apart, vide order dated 24.12.2016 and 23.02.2017 bailable warrant was issued against the accused, despite that he did not appeared before the Trial Court and the next date was fixed for appearance of the complainant. However, the order-sheet does not reflect whether the process fee for issuance of bailable warrant against the accused, has been paid by the complainant or not. 9. The trial Court vide order dated 12.09.2013, having perused the statement of the complainant and the documents produced by him found prima facie case under Section 138 of the Negotiable Instruments Act being made out against the respondent/accused. Further, the complainant is contesting his case since 2013. Thus, in the given set of facts and circumstances of the case and the conduct of the complainant, keeping in view the aforesaid decision of Hon’ble Supreme Court, the order impugned dismissing the complaint case for want of prosecution is not sustainable in law and is liable to be set aside. As such, the complaint case filed by the complainant is restored for adjudication. 10. Accordingly, the appeal is allowed and the order dated 29.06.2017 passed by learned trial Court is hereby set aside. The trial Court is 6 directed to proceed with the case and after providing opportunity to the parties, the case shall be decided in accordance with law. 11. The appeal thus stands allowed to the above extent. Records be sent back to the concerned Trial Court. Sd/- (Radhakishan Agrawal) Judge Prakash