Kalim Khan Vs Shri M.S.A. Khan (Moh. Sher Afgan Khan)

Shri M.S.A. Khan (Moh. Sher Afgan Khan) S/o M. M. Khan Aged About 44 Years R/o House No. 09, Near Masjid Priyadarshini Nagar District Raipur Chhattisgarh.

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... Respondent

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For Appellant (s) : Mr. Anirudh Singh, Advocate on behalf of Mr. Mayank Kumar, Advocate For Respondent(s) : Mr. Premshankar Yadav, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board

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07/01/2025

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This acquittal appeal under Section 378(4) of Criminal Procedure Code has been preferred by the complainant against the order dated 24.01.2020 passed by the Judicial Magistrate First Class, Raipur in Complainant Case No. 1643 of 2016 dismissing the complaint case filed under Section 138 of Negotiable Instrument Act, 1881 for want of prosecution.

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Facts of the case, in brief, are that the complainant filed a complaint before Judicial Magistrate First Class, Raipur alleging that the accused has given two cheques bearing cheque No. 010763, Rs. 1,50,000/- on 23.05.2016 and another cheque No. 548358 of Rs. 2,60,000/- on 23.05.2016. The said

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Digitally signed by SANTOSH SANTOSHKUMAR KUMAR SHARMA SHARMA Date:2025.02.12 14:24:07 +0530

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cheques were bounced and returned by the bank with an endorsement that the cheques were dishonored due to “insufficient fund in the account”, therefore, he lodged the complaint against the accused. The learned trial Court taking cognizance of the complaint issued summon to the respondent who has not appeared before the trial Court and the warrant of arrest issued to him by the trial Court for appearance of the accused on 25.09.2019 was returned unserved. Thereafter the matter was fixed on 24.01.2020, on the said date the complainant could not appear, therefore, the learned trial Court has dismissed the complaint for want of prosecution and acquitted the accused. This order is being assailed by the complainant by filing present acquittal appeal.

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Learned counsel for the appellant would submit that from the first day of hearing he was sincerely prosecuting the case before Judicial Magistrate First Class as reflected from the order sheet that he appeared from 21.07.2016 to 10.12.2019. It has also been contended that with regard to the date of hearings on 10.12.2019, 08.01.2020 and 24.01.2020 there was communication gap with regard to the hearing of the case, as such he could not appear on these dates and also not communicated the dates to the counsel, as such his absence is bonafide and unintentional and would pray for restoration of the complaint.

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Per contra, learned counsel for the respondent would submit that the appellant was not diligent to attend the hearing which is clear from the order sheet and he remained absent for three hearings and he has also not paid process fee, as such the dismissal of the complaint by the learned trial Court is legal and justified and would pray for dismissal of the acquittal appeal.

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

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It is not in dispute that the complainant was sincerely prosecuting the case before Judicial Magistrate First Class from 21.07.2016 till 10.12.2019 and thereafter only three occasions he remained absent, which is due to miscommunication between the counsel and the appellant, which has caused absence which is bonafide and unintentionally. The trial Court has taken hyper technical view and has dismissed the complaint though the complaint was pending since 2016, as such the order dated 24.01.2020 deserves to be quashed and it is quashed.

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Accordingly, the Acquittal appeal is allowed. It is directed that the parties shall appear before the trial court on 24.02.2025. It is also directed that notice is not required to send to the complainant or the accused as they have already entered appearance before this Court.

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Sd/-

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(Narendra Kumar Vyas)

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Judge

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Santosh

Kalim Khan v. Shri M.S.A. Khan (Moh. Sher Afgan Khan)

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Kalim Khan v. Shri M.S.A. Khan (Moh. Sher Afgan Khan)

Case brief

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