Vinod Kumar Upadhyay Vs Satyaprakash Baretha

Satyaprakash Baretha S/o Ramprasad Baretha, Aged About 40 Years R/o Village Tripureshwarpur (Nearby Ramanujnagar Market), Police Station And Tahsil Ramanujnagar District Surajpur C.G.

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... Respondent

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For Appellant For Respondent

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: Mr. Anil Kumar Gulati, Advocate. : None.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Order on Board

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08/09/2025

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This acquittal appeal U/s 378(4) of Cr.P.C. has been fled i questioning the impugned order dated 22.03.2021 passed by the Learned Chief Judicial Magistrate, District Surajpur (CG) by which th e Complaint Case No.421/2019 was dismissed due to

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non-prosecution under Section 256 of CrPC, which amounts to the acquittal of the Respondent/accused from the charge of he committing the ofence under Section 138 of N.I. Act. T f petitioner/complainant had f i rst challenged the order of the trial court dated 22/03/2021 in revision, then the learned 1 st Additional Sessions Judge, Surajpur, District-Surajpur (C.G.) passed an order on 13/09/2022 in Criminal Revision No.04/2021 and dismissed the revision f i nding it not maintainable. Thereafter, the petitioner/complainant challenged the order of the trial Court under Criminal Appeal No.-19/2022, on which the learned Additional Sessions Judge, Surajpur, DistrictSurajpur (C.G.) passed an order on 26/07/2023 and also dismissed the appeal f i nding it not maintainable. Hence, this appeal seeking for restoration of the Complaint Case No.1642/2016.

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Learned counsel for the appellant/complainant submits that the complainant was appearing before the learned trial Court. Though on the date of hearing the complainant was not present, without any opportunity, the trial Court has dismissed the complaint in a mechanical manner, which is not sustainable. Therefore, considering these grounds, for the ends of justice, he prays to allow the appeal and to remit the matter to the concerned trial Court to decide the same on its own merits.

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Heard learned counsel for the Appellant/complainant and perused the record of the Trial Court.

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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:-

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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

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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.”

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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.

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Reverting back to the facts of the present case, from a perusal of the record, it is evident that the presence of the accused had been recorded. The case was fixed for bail and framing of charges on 18/03/2020. On 18/01/2021, both parties appeared before the Court. However, on 16/03/2021, both parties failed to appear, and on the date of impugned order i.e. 22/03/2021, both parties were again absent. The trial Court observed that the case was fixed for framing of charges and that

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both parties had not appeared since the COVID-19 lockdown. Nevertheless, a perusal of the record reveals that on 18/01/2021, both parties had appeared, and the case was fixed for furnishing of bail and framing of charges. The absence of the complainant did not hinder the trial, as it was the responsibility of the accused to produce bail bonds, and the framing of charges was to be done by the Court against the accused. In such circumstances, the Court could have issued a process to ensure the presence of the accused, but the complainant had no obligation on that date. Therefore, the dismissal of the complaint is not found to be justified. Consequently, the impugned order is not sustainable.

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Accordingly, the absence of the complainant is condoned. Consequently, the impugned order is hereby set aside and the complaint case is restored to its original number for hearing and disposal in accordance with law on merits.

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