Shrimati Y. Durga Vs A.C.S. Rao

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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ACQA No. 343 of 2023

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1 - Shrimati Y. Durga W/o Y.V. Shankar Rao Aged About 48 Years R/o Kasimpara, Shankar Nagar, Torwa,, District : Bilaspur, Chhattisgarh

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----appellant

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Versus

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1 - A.C.S. Rao S/o Late Shri. A.J. Rao, R/o Q.No. 1209/2, Railway New Loco Colony, District- Bilaspur, C.G., Office Of Chief Crew Controller, South East Central Railway, District : Bilaspur, Chhattisgarh

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---- Respondent

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For appellant : Mr. Harshmander Rastogi, Advocate For Respondent : Mr. Deepak Gupta, Advocate

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S.B. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on board

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22.04.2024

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1. The present acquittal appeal preferred against the order dated 16/08/2023 passed by learned Judicial Magistrate First Class, Bilaspur (CG) in complaint case No. NIA 1856/2021 whereby the complaint case has been dismissed for want of prosecution and the respondent/ accused has been acquitted from the offence under Section 138 of Negotiable Instruments Act, 1881.

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2. Brief facts of the case in short is that the complainant has given total amount of Rs. 16,40,000/- in various installments which was in relation with the property dealing business in between the

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complainant and the respondent/ accused and in lieu of repayment of same, the respondent/ accused had issued the cheque bearing No. 256916 dated 23.03.2021 in favour of the complainant. When the complainant deposited the cheque in his account, the same was dishonored by the payee bank for want of sufficient balance in the account of respondent/ accused. Thereafter a demand notice was sent to the respondent/ accused by the complainant through his counsel on 04/04/2021 and ultimately a complainant case was filed by the complainant/ appellant before the learned trial Court. The complaint case was registered on 22/09/2021 and notice has been issued to the respondent/ accused by the learned trial Court and thereafter the case was adjourned for time to time for one and another reason. On 16/08/2023, the case was listed for filing of certain documents and replay of the interim application but the complainant as well as his counsel failed to appear before the court and thereafter, the case has been dismissed for want of prosecution as provided under Section 256 of the Code of Criminal Procedure and the respondent/ accused is acquitted.

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3. Learned counsel for the appellant would submit that the order passed by learned trial Court is bad in law. After filing of the complaint case as well as appearance by the respondent/ accused in the initial date of hearing, after service of notice upon him, he appeared before the learned trial Court and has made an application for dismissal of the complaint for which the learned

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trial Court sought reply of the complainant on the application filed by the respondent/ accused. Since, the complainant as well as his counsel did not appear on the date fixed by the learned trial Court, the case has been dismissed for want of prosecution. Learned trial Court ought to have given further date of filing of the reply of the interim application instead of dismissing the complaint case. The said complaint case No NIA 1856/2021 is the registered complaint case and in the interest of justice, complaint case must be heard on merits and disposed of on its own merits. Therefore, the impugned order dated 16/08/2023 passed by the learned trial Court be set aside.

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4. On the other hand, learned counsel for the respondent/ accused supported the impugned order passed by the learned trial Court and has submitted that when the complainant as well as his counsel was not made their appearance before the learned trial Court on the date of hearing even after various repeated calls, the learned trial Court was not having any other option except to dismiss the complaint case for want of prosecution and therefore the impugned order passed by learned trial Court is absolutely justified which needs no interference.

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5. I have heard the learned counsel for the parties and perused the record.

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6. It is clear from the order-sheets that the complaint case was filed on 14/06/2021 and the same has been registered on 22/09/2021 but it has been dismissed for want of prosecution on 16/08/2023

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which was fixed for submission of the reply of the interim application. It appears that the appellant/ complainant has appeared before the learned trial Court on several dated which was given to him. The dismissal of the complaint case and the acquittal of the respondent/ accused on the ground of absence of complainant is not justified that too for a single defalt of his appearance.

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7. Hon'ble Supreme Court in the case of Associated Cement Co Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 at para 17 as under:-

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"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 nor 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 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."

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8. This Court in the case of Ganesh Shankar Vs. Ajay Sahu

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reported in 2017 (2) CGLJ 525 held in para 11 that:-

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"11. Thus, before proceeding to dismiss the complaint, in absence of complainant in exercise of jurisdiction under 256 of Code of Criminal Procedure 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 Code would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wife discretion vested in the Court had properly been exercised in accordance with law."

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9. After considering the facts and circumstances of the case and the submissions made by learned counsel for the parties, this court is of the view that the matter should have been heard on merit and learned trial Court erred in dismissing the complaint case preferred by the complainant/ appellant without going through the merits of the case.

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10. In the result, the impugned order dated 16/08/2023 passed by the learned Judicial Magistrate First Class had in complaint case No. NIA 1856/2021 is set aside. The matter is remitted back to the court of learned Judicial Magistrate First Class, Bilaspur for a fresh adjudication of the case on merits after giving proper opportunity of hearing to the parties. The parties are directed to appear before the learned trial Court on 6^th May, 2024.

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11. Accordingly, the instant acquittal appeal is allowed.

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12. Registry is directed to sent back the record of the case of the

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concerned trial Court.

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Sd/-

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(Ravindra Kumar Agrawal) Judge