New Rajendra Nagar Raipur (C.G.) v. Goutam Udasi, S
Case Details
1 SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.09.11 16:11:15 +0530 2025:CGHC:46284 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2553 of 2025 Praveen Jain, S/o Paras Chand Jain aged about 56 years, R/o Priyadarshni Nagar, in front of Matrachaya- Pritchya Apartment Raipur (C.G.), through power of attorney Neraj Kesharwani, S/o Shri Thakurdas Kesharwani, aged about 24 years, R/o Bajwa Colony Sector- 01, New Rajendra Nagar Raipur (C.G.) ... Petitioner versus
Legal Reasoning
Goutam Udasi, S/o Shri Dhanraj Udasi, aged about 37 years, R/o Poshak Telar in front of Nebhani Building, Gali No -2, Telibandha District Raipur (C.G.) ... Respondent For Petitioner : Mr. Ajay Kumar Mishra, Advocate. For Respondent : Not noticed Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 10/09/2025 1. The complainant/Petitioner has filed this petition U/s 419(4) of BNSS, 2023 seeking grant of leave to appeal. The prayer made in the acquittal appeal filed along-with the petition shows that he seeks a direction to set aside the impugned order dated 30.05.2025 passed by learned Judicial Magistrate First Class, Raipur, District Raipur (CG) by which the Complaint Case No.4428/2018 was dismissed due to non-prosecution and seeking restoration of the complaint case to its original number. 2 2. Learned counsel for the petitioner submits that the complaint filed u/s 138 of NI Act before the Trial Court is dismissed for want of prosecution, the petition filed u/s
Decision
419(4) of BNSS can be disposed of in terms of an acquittal appeal and it is no longer necessary to seek special leave to appeal, because the complainant is considered victim and has statutory right to appeal under the proviso to Section 413 of BNSS (Section 372 of Cr.P.C). 3. Having considered the submission made by learned Counsel, this Court is inclined to dispose of this petition in terms of acquittal appeal. 4. By impugned order, the learned Trial Court invoking the power under Section 256 of the Cr.P.C., dismissed the said complaint which amounts to acquittal of the respondent/accused from the charge of committing the offence u/s 138 of NI Act. Hence this appeal. 5. Learned Counsel for the Appellant/complainant submits that the complainant was appearing before the learned trial Court. On the date of hearing i.e. 30.05.2025, the complainant was not present, the trial Court has dismissed the complaint in a mechanical manner, which is not sustainable. He would submit that there was miscommunication between the Counsel and the complainant due to which he also could not appear before the trial Court on the date of hearing. Therefore, he prays to allow the appeal and to remit the matter to the concerned trial Court to decide the same on its own merits. 6. Heard learned counsel for the Appellant/complainant and perused the record of the Trial Court. 7. 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 3 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.” 8. In view of the aforesaid legal provision, it is explicit that before proceeding 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. 9. It is evident that the complainant was absent before the Trial Court on 14.03.2024, 25.07.2024, 14.08.2024, 01.05.2025 & 12.05.2025. Notably, the particulars of the 4 offense have not been framed against the accused, who also remains absent. The complaint case is pending since 25.05.2018 before the Trial Court. Since as per the complainant there was miscommunication between the Counsel and the complainant, therefore, he could not appear on 30.05.2025. So the trial court, without affording any opportunity, dismissed the complaint case on the default of the complainant. In the complaint, it has been said that a cheque worth Rs. 2,00,000/- was bounced. The party should not suffer loss due to the mistake of the lawyer. The adjudication is found necessary in the case. In such circumstances, this Court is of the view that a case is made out in favour of the petitioner/complainant to restore the case and decide it on its own merits. 10. Consequently, the impugned order being unsustainable is hereby set aside and the complaint case is restored to its original number subject to payment of cost of Rs.3,000/- before the DLSA, Raipur (C.G.) within 7 working days from the date of receipt of copy of this order for hearing and disposal in accordance with law on merits. 11. The Petitioner is directed to appear before the trial Court on 9th October, 2025. 12. The trial Court is directed to give full opportunity of hearing to both the parties and then proceed with the matter on its own merits. 13. Resultantly, the Petition/Acquittal Appeal is allowed at the admission stage. 14. Let a copy of this order along with the record be sent to the concerned trial Court forthwith. Sd/- Sd/- (Sanjay Kumar Jaiswal) Judge Shubham