Shyamlal Agrawal Vs Anjay Shukla

Anjay Shukla S/o Late Sh. Vijayshankar Shukla Aged About 56 Years R/o 31/250, Civil Lines, In Front of C. M. House, P. S. Civil Lines, Raipur, District Raipur Chhattisgarh, ... Respondent/Accused

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For Appellant : Shri Abhishek Vinod Deshmukh, Advocate appears through VC along with Shri Ashish Pandey, Advocate For Respondent : --

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( HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

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Order on Board

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23/01/2026

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1. This is acquittal appeal filed under section 378 (4) of Cr.P.C. by the complainant against the order dated 19.02.2016 passed by the Judicial Magistrate First Class, Raipur, in an unregistered Complaint Case whereby the learned J.M.F.C. dismissed the complaint case for want of prosecution.

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2. Facts of the case, in brief, is that appellant/complainant and one Pramod Tiwari were approached by the Respondent and in October 2013 with a proposal to become partner in his transportation business. Acting on this oral agreement, the appellant and Shri Tiwari invested in

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the business wherein the appellant contributed Rs. 20,00,000/between October 2013 and April 2014. Despite repeated requests, the Respondent did not pay the appellant’s share of profit, citing financial difficulties. Subsequently, on 02.05.2014, the Respondent issued a cheque in favour of the appellant for Rs. 20,00,000/-, which was dishonoured for “funds insufficient”.

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3. The appellant issued a statutory legal notice under Section 138 of the NI Act, 1881 read with Section 420 of the IPC. The appellant then filed a complaint before the competent Court. However, the complaint was dismissed for non-prosecution on 19.02.2016 by the Trial Court. Hence, this appeal.

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4. Learned counsel for the appellant submits that the impugned order passed by the Court below is illegal and unsustainable in law. He further submits that in matters under Section 138 of the NI Act, the courts may adjourned the case and absence of Advocate of the complainant is not deliberate or intentional. On the aforesaid grounds, it is prayed that the impugned order deserves to be set aside and the complaint be restored for adjudication on merits.

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5. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand

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reported in (1998) 1 SCC 687 , Hon'ble the Apex Court held as under:-

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“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. 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. 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

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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 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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6. Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726 , Hon'ble the Apex Court held that in a proceeding under the Act, 1881, due to single default in appearance on the part of the complainant/appellant, the dismissal of the complaint case is not proper, legal and justified.

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7. Perusal of the impugned order dated 19.02.2016 shows that on the said date the complainant or his counsel were absent and no reason for their absence has been shown. Moreover, the case is pending since 22.07.2014 and till date no complaint case has been registered against the respondent. Ordersheet further shows that the complainant has been absent on 09.12.2015, thereafter, the case was fixed for further proceeding on 19.02.2016. The trial Court dismissed the matter for want of prosecution on 19.02.2016.

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8. It is pertinent to mention here that dismissal of the complaint case was not the only option before the trial Court. The trial Court could have

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adjourned the case to some other date as per the provisions of Section 256(1) CrPC. From perusal of the order-sheets of the trial Court, it is seen that on the earlier dates of hearing the complainant was present through his counsel. As such, it cannot be said that the complainant was not interested in pursuing his case. Thus, in the given set of facts and circumstances of the case and the conduct of the complainant, keeping in view the aforesaid decision of Hon’ble Supreme Court, the order impugned dismissing the complaint case for want of prosecution is not sustainable in law and is liable to be set aside.

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9. Accordingly, the appeal is allowed and the order dated 19.02.2016 passed by learned trial Court is hereby set aside. The trial Court is directed to proceed with the case and after providing opportunity to the complainant, the case shall be decided in accordance with law.

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10. Complainant is directed to appear before the trial Court on 25^th February, 2026 .

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11. The appeal thus stands allowed to the above extent. Record be sent back to the concerned trial Court.

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Sd/-

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(Radhakishan Agrawal)

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JUDGE

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Prakash

Shyamlal Agrawal v. Anjay Shukla

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Shyamlal Agrawal v. Anjay Shukla

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