1 2026:CGHC:10713 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 133 of 2016 1 - Naman Traders through its Proprietor Alok Chandak, S/o Shri Chhagan Chandak, Aged About 35 Years, R/o Village Kuthrel, Tahsil And District Durg, Chhattisgarh. ... Appellant versus 1 - M.K.Sharma S/o Shri Ramanand Sharma Aged About 50 Years R/o 183, Jawahar Nagar, Durg, Tahsil And District Durg, Chhattisgarh ... Respondent For Appellant : Mr. Ashish Surana, Advocate For Respondent : Mr. Navin Shukla, Advocate Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board 02/03/2026 1. This is acquittal appeal filed under section 378 (4) of Cr.P.C. by the complainant/appellant against the order dated 07.08.2015 passed by the Judicial Magistrate First Class, Durg (C.G.), in Criminal Complaint Case No.467/2012, whereby the learned J.M.F.C. dismissed the complaint case filed under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’) for want of prosecution. 2. Facts of the case, in brief, is that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act on 25.05.2012 before the Judicial Magistrate First Class, Durg, alleging dishonour of Cheque No. PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2026.03.02 15:23:27 +0530 2 094315 dated 28.03.2012 for Rs. 1,53,000/-, issued by the respondent towards discharge of liability. The said cheque, when presented before Bank, was returned unpaid due to “Insufficient Funds.” 3. A statutory notice dated 25.04.2012 was duly served, but the respondent denied liability. Then the appellant filed a complaint before the competent Court. However, the complaint was dismissed for non- prosecution on 07.08.2015 by the trial Court. Hence, this appeal. 4. Learned counsel for the appellant submits that the impugned order passed by the trial Court is illegal and unsustainable in law. He further submits that in matters under Section 138 of the NI Act, the courts may adjourned the case and absence of Advocate of the complainant is not deliberate or intentional. He also submits that on the impugned date, i.e., 07.08.2015, the case was not fixed for hearing but only for further proceedings; therefore, the presence of the complainant was not necessary. On the aforesaid grounds, it is prayed that the impugned order deserves to be set aside and the complaint be restored for adjudication on merits. 5. Learned counsel for the respondent does not object the submission made by the learned counsel for the appellant. 6. Heard learned counsel for the parties and perused the material available on record. 7. 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 3 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.” 8. 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. 9. A perusal of the certified copy of the complaint and the order-sheets of the learned trial Court reveals that the complainant was engaged in the business of selling iron rods, cement, etc., and that the accused/respondent had purchased certain materials/articles from him. In discharge of the said liability, the accused/respondent issued a cheque dated 28.03.2012 for a sum of Rs.1,53,000/- drawn on Nagrik Sarkari Bank Maryadit, Durg. The said cheque was dishonoured on presentation due to “insufficient funds.” Despite service of statutory 4 notice, the accused failed to make payment of the cheque amount. Consequently, the complainant filed a complaint under Section 138 of the NI Act before the concerned Judicial Magistrate First Class, which was registered against the respondent/accused vide order dated 25.05.2012 for the offence punishable under Section 138 of the NI Act. 10. A perusal of the impugned order dated 07.08.2015 shows that on the said date, neither the complainant nor his counsel was present; therefore, the complaint case was dismissed for want of prosecution and the accused was acquitted. However, the order-sheets of the trial Court reflect that on 22.07.2014, the case was fixed for filing an affidavit in examination-in-chief of complainant along with documents on 15.10.2014. On that date, the Presiding Officer was transferred, and the matter was adjourned to 16.01.2015. Thereafter, it was adjourned to 21.05.2015 and then to 09.07.2015. On 09.07.2015, the matter was fixed for further proceedings on 07.08.2015; however, it was not specified for what specific purpose the case was listed. On 07.08.2015, in the absence of the complainant or his advocate, the trial Court dismissed the complaint for want of prosecution. 11. It is pertinent to mention here that dismissal of the complaint case was not the only option available to the trial Court. The trial Court could have adjourned the matter to another date in terms of Section 256(1) Cr.P.C. From the perusal of the order-sheets, it is also evident that on the earlier date, i.e., 09.07.2015, the case was simply fixed for further proceedings on 07.08.2015. Therefore, it cannot be said that the complainant was not interested in prosecuting the case. The Court ought to have fixed the matter for a specific purpose. Thus, in the given 5 facts and circumstances of the case, and considering the conduct of the complainant as well as the aforesaid decision of the Hon’ble Supreme Court, the impugned order dismissing the complaint for want of prosecution is not sustainable in law and is liable to be set aside. 12. Accordingly, the appeal is allowed and the order dated 07.08.2015 passed by learned trial Court is hereby set aside. The trial Court is directed to proceed with the case and after providing opportunity to the complainant, the case shall be decided in accordance with law. 13. Parties are directed to appear before the concerned trial Court on 27th March, 2026. 14. The appeal thus stands allowed to the above extent. Copy of order be sent to the concerned trial Court. Sd/- (Radhakishan Agrawal) Judge Priyanka