1 2026:CGHC:5340 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 18 of 2026 1 - Faneshwar Yadav S/o Shri Balram Yadav Aged About 54 Years Resident Of Q. No. 104 Siddhshikhar Vistar Shanti Nagar, District- Bilaspur Chhattisgarh. ... Appellant(s) versus 1 - Rajesh Jotwani S/o Gyanchand Jotwani Aged About 53 Years Resident Of Near Hero Honda Showroom, Nutan Chowk, P.S. Sarkanda, District Bilaspur Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Somnath Verma, Advocate. For Respondent(s) : Mr. Anand Kesharwani, Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board 30/01/2026 1. The present acquittal appeal has been listed on admission. 2. Since the Respondent has already made appearance, the appeal is formally admitted for hearing and with the consent of the parties, it has been heard finally today itself. 3. The present acquittal appeal has been filed by the appellant against the order dated 29.06.2022 passed by learned Judicial Magistrate First Class, Bilaspur in Criminal Case (Negotiable Instrument Act, 1881) No. 607/2019, whereby the complaint case filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed for want of prosecution. 4. The brief facts of the case are that the complainant has filed a complaint case under Section 138 of Negotiable Instrument Act, against the ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.02.02 17:17:48 +0530 2 Respondent before the learned Judicial Magistrate First Class, Bilaspur which was registered as Criminal Case (Negotiable Instrument Act) No. 607/2019. The said criminal complaint case was filed on 28.03.2019 and it was registered on 03.07.2019 and summons were issued to the accused for one or other reason summons could not be served time to time issued by the learned trial Court and on 29.06.2022 when the case was fixed for appearance of the accused, the petitioner complainant could not appear and the case was dismissed for want of prosecution and the Respondent accused was acquitted. 5. The said order dated 29.06.2022 was challenged by the petitioner complainant by filing the CRMP No. 728/2024 before this Court and initially this Court has dismissed the application for grant of leave to file acquittal appeal on the ground of limitation vide order dated 16.08.2024 the said order dated 16.08.2024 passed by coordinate Bench of this Court in CRMP No. 7282024 was challenged by the petitioner complainant before the Hon’ble Supreme Court in Criminal Appeal No. 5538/2025 SLP (Crl.) No. 948/2025 which was allowed on 17.12.2025 and the CRMP No. 728/2024 was restored to its original number, delay was condoned and restored the matter for its considering on merits. Thereafter, on 15.01.2026, the CRMP was allowed leave to file appeal is granted to the appellant/complainant. 6. Learned counsel appearing for the appellant would submit that the order passed by learned trial Court is bad in law. After filing of the complaint case as well as after registration, the process was issued to the Respondent and the case was fixed for his appearance. The presence of the complainant was not necessary on that day. Since the complainant as well as his counsel did not appear on that day, the learned trial Court has dismissed the case for want of prosecution. The learned trial Court ought to have given further date of appearance of the parties instead of dismissing it. The case involved the huge amount of money of the complainant and he is prosecuting his 3 complaint case under Section 138 of Negotiable Instrument Act, 1881 and it must be heard on merits and disposed of on its own merits, therefore, the impugned order dated 29.06.2022 passed by learned trial Court be set aside and the matter may be remitted back to the learned trial Court for consideration on merits. 7. On the other hand, learned counsel appearing for the Respondent accused supported the impugned order passed by learned trial Court and submitted that the complainant repeatedly not appearing in the proceeding, therefore, considering his non-appearance, the learned trial Court has dismissed the complaint case for want of prosecution, which is absolutely justified and needs no interference. 8. I have heard learned counsel for the parties and perused the material annexed with the present appeal. 9. It is clear from the order-sheets that the complaint case was filed on 28.03.2019 and the same has been registered on 03.07.2019 but it has been dismissed for want of prosecution on 29.06.2022 which was fixed for submission of the reply of the interim application. It appears that the appellant/ complainant has appeared before the learned trial Court on several dated which was given to him. The dismissal of the complaint case and the acquittal of the respondent/ accused on the ground of absence of complainant is not justified that too for a single default of his appearance. 10. Hon'ble Supreme Court in the case of Associated Cement Co Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 at para 17 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 nor 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 the 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 4 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." 11. This Court in the case of Ganesh Shankar Vs. Ajay Sahu reported in 2017 (2) CGLJ 525 held in para 11 that:- "11. Thus, before proceeding to dismiss the complaint, in absence of complainant in exercise of jurisdiction under 256 of Code of Criminal Procedure it must be considered by the Court whether the presence of the complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal attendance of the complainant is or is not necessary. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Section 256 of the Code would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wife discretion vested in the Court had properly been exercised in accordance with law." 12. After considering the facts and circumstances of the case and the submissions made by learned counsel for the parties, this court is of the view that the matter should have been heard on merit and learned trial Court erred in dismissing the complaint case preferred by the complainant/ appellant without going through the merits of the case. 13. In the result, the impugned order dated 29.06.2022 passed by the learned Judicial Magistrate First Class, Bilaspur in Criminal Case (Negotiable Instrument Act, 1881) No. 607/2019 is set aside. The matter is remitted back to the court of learned Judicial Magistrate First Class, Bilaspur for a fresh adjudication of the case on merits after giving proper opportunity of hearing to the parties. The parties are directed to appear before the learned trial Court on 19th February, 2026. 14. Accordingly, the instant acquittal appeal is allowed. Sd/- (Ravindra Kumar Agrawal) Judge Alok