Champa, Chhattisgarh,...( v. Goverdhan Sharma S
Case Details
1 2025:CGHC:17023 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.453 of 2024 Tinku G H Memon S/o Mo. Rafique Memon Aged About 35 Years, By Caste Musalman, R/o Champa Tahsil Champa, District- Janjgir- Champa, Chhattisgarh,...(Complainant) ... Appellant versus Goverdhan Sharma S/o Uday Sharma R/o Near Bajrang Talkies, Sadar Road Champa, Tahsil Champa, District- Janjgir-Champa, Chhattisgarh. ... Respondent For Appellant
Legal Reasoning
: Shri Gurudev I. Sharan, Advocate. For Respondent : Shri Arpan Verma, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 11.04.2025 Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.04.15 15:26:39 +0530 1. With the consent of learned Counsel for the parties, the matter is hearing finally. 2 2. This Acquittal Appeal under Section 378 (4) of the Cr.P.C. has been preferred against the judgment dated 14.06.2019 passed by the Judicial Magistrate First Class, Champa, District Janjgir-Champa in Criminal Complaint Case No.16/2017 whereby, on the date of hearing, in the absence of the Complainant, an order has been passed dismissing the complaint case and the Respondent/accused was acquitted invoking the power under Section 256 Cr.P.C. 3. Necessary facts of the case are that the Appellant/Complainant has filed a criminal complaint case stating that both the Appellant and the Respondent belong to the same city and the Respondent/accused has demanded a loan of Rs.2 lacs from him in the month of October, 2016, which was given to the Respondent/accused and for repayment of the same, a cheque was received by him, which on being presented before the Bank for encashment, got dishonoured. The Respondent/accused did not make the repayment even after he was served with a legal notice, therefore, a complaint case has been preferred on 16.03.2017 against him. On the date of hearing i.e. 14.06.2019, the Appellant/Complainant remained absent and his Counsel has also not made his appearance, therefore, the said case was dismissed and the Respondent/acquitted was acquitted. 4. Shri Sharan submits that the learned JMFC has dismissed the complaint case only on technical grounds, whereas, the same ought to have been decided on merits. He placed reliance on Sanjay Chouhan vs. Ramayan Singh; Cr.M.P No.1352/2020 dated 27th June, 2022 and 3 submits that a last opportunity may be granted with suitable imposition of cost to meet the ends of justice. 5. Alternatively, Shri Verma supports the impugned judgment of acquittal and submits that order sheets of the trial Court reflect that the said Court has specifically, on the last date of hearing i.e. 04.05.2019, has afforded an opportunity and prior to the said date also, various opportunities have been given despite which, the Appellant/Complaint did not appear either in person or through his Counsel, which goes to show that he himself was negligent towards the progress of the case. Her further submits that presence of the Appellant/Complainant for recording his evidence was necessary but he did not bother and as such, was quite negligent, therefore, the trial Court has rightly acquitted the Respondent/accused by dismissing the complaint case. 6. Heard learned Counsel for the parties and perused the documents annexed with the Appeal carefully. 7. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, it was held that by exercising power under Section 256 Cr.P.C, firstly, if the trial Magistrate himself considers that in a situation of the case whether it is proper to adjourn the hearing then he shall not acquit the accused and when he considers that personal attendance of the Complainant is not necessary on that day, he has the power to dispense with his attendance and proceed with the case. In the said matter, while dealing with Section 256 Cr.P.c, it was held as under:- 4 "......Two constraints are imposed on the court for exercising the power under Section 256. 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 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 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. Similarly, in the matter of S. Rama Krishna Vs. S. Rami Reddy reported in (2008) 5 SCC 535, the Supreme Court has observed that although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate and the High Court itself had come to the conclusion that the Respondents were not interested in getting the matter prosecuted, so, it allowed their Appeal, opining that any lis between the parties should be decided on merits rather than on technicalities. It has been further observed that the High Court has failed to take into consideration the fact that it was dealing 5 with an order of acquittal and thus, the principle of law which was required to be applied was that if two views are possible, a judgment of acquittal should not ordinarily be interfered with. 9. Falling back into the facts of the present case, in the light of the aforesaid settled principles, it is explicit from the record that though the trial Court has given a warning to the Complainant and also given ample opportunity, but he himself has not turned up for recording his evidence for progress of the case. In such circumstances, this Court opines that the trial Court has rightly acquitted the Respondent by recording its finding that the Complainant was not interested in getting the matter prosecuted. 10. In view of above, this Court is of the considered opinion that the order passed by the learned Magistrate is just and proper and does not warrant any interference. 11. Resultantly, this Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) JUDGE Priya