1 2026:CGHC:5590 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 268 of 2018 Vyas Pathak S/o Late Shri Kanti Kumar Pathak Aged About 40 Years R/o Ahmadji Colony, Civil Line, P.S. City Kotwali, Raipur, Tahsil And District Raipur Chhattisgarh. ... Appellant/Complainant versus Ram Singh Nayak S/o B.L. Nayak Aged About 55 Years R/o Daganiya Raiour, Shanti Colony, P.S. D.D. Nagar, Raipur, Tahsil And District Raipur Chhattisgarh., ... Respondent For Appellant : Shri Shikhar Sharma, Advocate. For Respondent : Shri S.P.Sahu, Advocate. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Judgment on Board 31/01/2026 1. This is an acquittal appeal filed under Section 378(4) of the Cr.P.C. by the complainant/appellant against the order dated 22.01.2018 passed by the Judicial Magistrate First Class, Raipur (C.G.), in Criminal Case No.280/2012 which has been dismissed under Section 256(1) of Cr.P.C. as the complainant was not present on the date of hearing. 2. Brief facts of the case are that the complainant/appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent/accused before the learned J.M.F.C. Raipur, who, after recording evidence of both the parties, fixed the same for final arguments. It is averred that during pendency of the complaint Digitally signed by ALLENA ANJANI KUMAR Date: 2026.02.02 17:46:00 +0530 2 case, the respondent had filed a Cr.M.P. No.640/2017 before this Court for examination of hand-writing expert as the dates have been subsequently filled therein, which was rejected vide order dated 09.11.2017. Because of the said case pending consideration, final arguments in the complaint case could not be concluded and the appellant was under the impression that the proceeding in the said case was still pending, therefore, he did not appear nor his advocate on 22.01.2018 and consequently the case was dismissed for want of prosecution. After coming to know the dismissal of his case, he filed an application before the said Court for setting aside the order dated 22.01.2018, which was also dismissed by the said Court. Hence, this appeal. 3. Learned counsel for the appellant/complainant submits that the learned trial court has wrongly dismissed the complaint case, which was filed under Section 138 of the N.I. Act by the appellant/complainant, for non- appearance of the complainant on 17.01.2018 and 22.01.2018, on which date, the case was fixed for final arguments. He further submits that Cr.M.P. No.640/2017 was filed by the respondent/accused against the order dated 20.02.2017 which was dismissed and the original record was sent to the concerned Court, but the appellant was under the impression that the said Cr.M.P. was not decided by this Court. He also submits that appellant and his advocate did not appear before the Court whereas the appellant along with his advocate or through his advocate made his appearance before the trial Court from 30.04.2010. He further submits that when the case was listed before the Trial Court for final arguments, the complainant could not appear due to bona fide mistake occurred on behalf of the complainant’s counsel. On the 3 aforesaid grounds, it is submitted that the impugned order deserves to be set aside and the complaint be restored for adjudication on merits. 4. Learned counsel for the respondent supported the impugned order, as passed by the J.M.F.C. Raipur. 5. I have heard learned counsel for the parties and perused the record. 6. 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 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.” 4 7. 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. 8. Perusal of the order sheets of the trial Court would show the regular appearance of complainant/appellant through his advocate before the learned Court from 30.04.2010 to 05.1.2018. Further perusal of the record would show that the respondent/accused filed a Cr.M.P. No.640/2017 aggrieved by the order dated 20.02.2017 which arises out of the order dated 15.06.2016 passed by the J.M.F.C, however, it appears that the said Cr.M.P. was dismissed by this Court on 09.11.2017. The criminal case was listed on 17.01.2018 and after 4 days, i.e., 22.01.2018, on which date, neither the complainant nor his advocate has made their appearance, resulting into, dismissal of the case for want of prosecution. It also reveals from the record that the complainant and his advocate made their appearance before the learned trial Court throughout the dates commencing from 30.04.2010. Thus, the learned Trial Court dismissed the case of the complainant for non-prosecution under Section 256(1) of Cr.P.C. 9. 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 on some other date as per the provisions of Section 256(1) CrPC. From perusal of the order-sheets of the 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 5 unnecessarily remained absent on 17.01.2018 and 22.01.2018 to hamper the course of justice. 10. The complainant is contesting his case since 2010. Thus, in the given set of facts and circumstances of the case and the conduct of the complainant, keeping in view the aforesaid decisions of Hon’ble Supreme Court, the order impugned passed on 22.01.2018 dismissing the complaint case for want of prosecution is not sustainable in law and is liable to be set aside. 11. Accordingly, the order dated 22.01.2018 passed by learned trial Court is hereby set aside and the Criminal Case No.280/2012 is restored. The trial Court is directed to proceed with the case and after providing opportunity to the parties, the case shall be decided according to law. 12. Both the parties are directed to appear before the trial Court on 26th February, 2026 for further proceedings. 13. The appeal thus stands allowed to the above extent. Records be sent back to the concerned Trial Court for its decision afresh. Sd/- (Radhakishan Agrawal) JUDGE Anjani