High Court of Chhattisgarh
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.07.29 16:41:20 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:36753 NAFR ACQA No. 50 of 2020 1 - Smt. Taramati Ojha W/o Shri Suendra Kumar Ojha Aged About 38 Years R/o Shyam Nagar , Near Kali Mandir , Police Station Telibandha, Raipur , Tehsil And District Raipur , Chhattisgarh. Pin 492001. (complainant) versus ... Appellant.
Legal Reasoning
1 - Arun Verma S/o Shri Bhagirathi Verma Aged About 30 Years R/o Shyam Nagar, Opposite Gurudawara Lane, Near Kali Mandir , Police Station Telibandha , Raipur , Tehsil And District Raipur , Chhattisgarh Pin 492001, ... Respondent(s) For Appellant For Respondent(s) : Shri Akhilesh Mishra, Advocate. : None, though served. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 29/07/2025 1. This Acquittal appeal has been preferred against the order dated 13.08.2019 passed by the Judicial Magistrate First Class, Raipur C.G. in Criminal Case No.3566/18 whereby, learned trial Court dismissed the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 in absence of appellant/complainant on the date of hearing. 2. Necessary facts of the case are that appellant/complainant has filed a 2 complaint case on 30.03.2017 which was registered on 11.07.2018. On 03.11.2018, in pursuance of non-bailable warrant, respondent/accused appeared in the case and particulars of the offence were stated to him. Thereafter, on 01.04.2019, case was listed for complainant’s evidence and on that day, complainant exhibited his documents. Though as per the order sheet dated 23.07.2019, complainant regularly appeared in the case, however, accused sought time for the cross-examination, to whom a last opportunity was extended. On 29.07.2019, complainant did not appear before the Court due to death of her near relative and on the next date of hearing i.e. 13.08.2019 another application has been moved by counsel for the complainant stating that on account of demise of complainant’s near relative, complainant’s has to attend the Tervi program and is unable to attend the hearing and sought time. The said application was dismissed and the complaint case was closed acquitting the respondent/accused of the charge as mentioned in para 1 of this judgment. Hence this Appeal. 3. Counsel for the appellant/complainant would submit that appellant has a good case in his favour and she has engaged a lawyer who diligently pursued the matter from the year 2017. He further submits that though complainant appeared on several dates for cross-examination, however, the same has not been conducted by counsel for the respondent/accused. He also submits that though an application was moved assisgning reasons, however, the trial Court, without examining the reasons, in a mechanical manner, dismissed the application. At last, he submits that to meet the ends of justice, the matter may be remitted back to the trial Court and the absence of appellant/complainant may be condoned. 4. Even after service of notice upon the respondent, none appears on his 3 behalf. 5. I have heard learned counsel for the appellant and perused the documents annexed with the appeal carefully. 6. In the matter of Associated Cement Co. Ltd. vs. Keshvanand1 the Hon’ble Supreme Court has held that Section 256 of the Code imposes two constraints on the Court for exercising the power for dismissing the complaint and provides 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 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.” 1 (1998) 1 SCC 687 7. In view of the aforesaid legal provision, it is explicit that before proceeding 4 to dismiss the complaint, in the absence of complainant, in exercise of jurisdiction under Section 256 of the CrPC, 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 CrPC would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. 8. Reverting back to the facts of the present case, considering the reasons assingned in the application though earlier various opportunities had been extended in favour of the complainant, this Court finds it appropriate to extend one more opportunity in favour of the appellant/complainant subject to payment of cost of Rs.1,000/- (one thousand only) which shall be deposited within 30 days of this order before DLSA, Raipur and upon furnishing the receipt of the said cost, the concerned trial Court is directed to restore the complaint case and proceed with the matter in accordance with law from the last date of hearing. 9. For the foregoing, the impugned order being unsustainable is hereby set aside. The Criminal Case No.3566/18 is restored to its original file of the Judicial Magistrate First Class, Raipur for hearing and disposal in accordance with law on merits, from the last date of hearing. 5 10.The reason assigned by the appellant/complainant for her absence is held to be sufÏcient reason for her absence. Accordingly, her absence is condoned. 11.Appellant/complainant is further directed to take suitable steps for presence of accused/respondent before the trial Court, in accordance with law as no one appears on behalf of the respondent, depsite service. 12.Accordingly, this Appeal is allowed. 13.Let a copy of this judgment along with record be sent to the concerned Court. Avinash Sd/- (Deepak Kumar Tiwari) Judge