Abis Dairy Farm (a Unit of Abis Hatchery Pvt. Ltd. Vs Anuj Hydroulics

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2025:CGHC:5096

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 944 of 2024

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Abis Dairy Farm (A Unit Of Abis Hatchery Pvt. Ltd. Registered Office At Village Indamara, Post Pendri, Tehsil And District Rajnandgaon Chhattisgarh,...(Complainant)

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... Appellant

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versus

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Anuj Hydroulics Through Proprietor Sandip Chakrvarty S/o Suproto Chakravarty Aged 35 Years R/o Padum Nagar, Bhilai, District Durg, Chhattisgarh,...(Accused)

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Sandip Chakrvarty S/o Suproto Chakrvarty Aged About 35 Years R/o Padum Nagar, Bhilai, District Durg Chhattisgarh,

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... Respondents

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For Appellant : Mr. Pradeep Kumar Shrivastava, Advocate appeared through Video Conferencing For Respondents : Mr. Amit Nayak, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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28.01.2025

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The appellant/complainant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code against the order dated 11.01.2018 passed by the Judicial Magistrate First Class, District Rajnandgaon by which the complaint filed by the appellant/complainant under Section 138 of the Negotiable Instruments Act has been dismissed for want of prosecution.

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Digitally signed by BHUMIKA BHUMIKA ANGARE ANGARE Date: 2025.02.06 11:26:35 +0530

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The brief facts reflected from the record are that the appellant/complainant has filed complaint on 03.01.2013 before learned Judicial Magistrate First Class, Rajnandgaon alleging that the respondents were purchasing milk in bulk from appellant/complainant and payments were made either in cash or through cheques from time to time, but they have not cleared the entire liability and partial payments were made, as such towards discharge of liability of payment for supply of milk, the respondent No. 2 being proprietor of Respondent No. 1 handed over a cheque bearing No. 390088 dated 27.08.2012 to the tune of Rs. 1,77,748/-. The appellant deposited the same in the account maintained by him in the State Bank of India, Branch Bhilai-3. The same was bounced and returned to the appellant with an endorsement “due to insufficient funds”.

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The complainant after statutory notice has taken recourse of filing complaint under Section 138 of the Negotiable Instruments Act which was registered as Complaint Case No. 238/2015. The record of the case show that the complaint was pending since 2013 and the same was adjourned on various occasions for complainant’s evidence. The matter was taken up for hearing on 11.01.2018 and on that date the complainant witness was not present, therefore, the complaint was dismissed for want of prosecution by the learned trial Court and acquitted the accused. Being aggrieved with this order of dismissal of complaint, the complainant has preferred an appeal before learned II Additional Sessions Judge which was registered as Criminal Appeal No. 8 of 2018. The same was dismissed as not maintainable vide order dated 29.06.2018. The appellant has not challenged the order of dismissal of appeal by the appellate Court as not maintainable as

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against the acquittal only acquittal appeal is maintainable, thereafter, the present acquittal appeal has been filed by the appellant on 20.09.2018 alongwith condonation of delay in filing the acquittal appeal and this Court has allowed the leave to file appeal on 29.08.2024.

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Learned counsel for the appellant would submit that on the date of hearing the complainant due to some personal reason has gone to Raipur, therefore, he could not appear but counsel has appeared before learned trial Court and also filed an application for exemption from appearance under Section 256 of the Cr.P.C. which was rejected by the trial Court and the complaint was dismissed. Thus, he would submit that the learned trial Court has committed illegality which warrants interference by this Court.

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On the other hand learned counsel for the respondents would submit that learned trial Court has not committed any illegality as from the order-sheet it reflects that the complainant has sought so many times for complainant’s evidence but he has not led the evidence despite ample opportunities, as such the learned trial Court has rightly dismissed the complaint and would pray for dismissal of the acquittal appeal.

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I have learned counsel for the parties and perused the records of the learned trial Court.

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From perusal of the record it is quite vivid that the counsel for the complainant was present and adjournment was sought for recording of the evidence due to personal difficulty which has not been taken into consideration by the learned trial Court and has mechanically rejected the same. The learned trial Court without considering the fact that the

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case was pending since 2013 and more than 11 years has already been lapsed and by taking hyper-technical view dismissed the same, therefore, I am of the view that the acquittal appeal deserves to be allowed and order of dismissal of complaint is set-aside by this Court, accordingly, it is set-aside and the complaint is restored to its original number.

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Since, the parties have already entered appearance, therefore, it is directed that the appellant and accused shall appear before learned trial Court on 11^th March, 2025 and no notice is required for appearance of the parties as the parties have already appeared before this Court. Learned trial Court is directed to make an endeavour to decide the complaint within an outer limit of 1 year from the date of first appearance of the parties i.e. 11.03.2025 as the matter is pending since more than 11 years.

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With aforesaid direction, the instant acquittal appeal is allowed.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Bhumika

Abis Dairy Farm (a Unit of Abis Hatchery Pvt. Ltd. v. Anuj Hydroulics

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Abis Dairy Farm (a Unit of Abis Hatchery Pvt. Ltd. v. Anuj Hydroulics

Case brief

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