2026:CGHC:4253 Digitally signed by PRAKASH PRAKASH KUMAR NAFR KUMAR Date:

2026.01.23 16:14:27 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 292 of 2018 Shri Hanuman Sharma S/o Shri Ramgopal Sharma, Aged About 52 Years, R/o Barpali Chowk Champa, Tahsil Champa, District Janjgir-Champa, Chhattisgarh, ...Appellant versus P.K. Dalal and Company Through Proprietor Pawan Kumar Soni, Aged About 50 Years, R/o Sanjay Nagar, Champa Tahsil Champa, District Janjgir-

Champa, Chhattisgarh, ... Respondent For Appellant : Shri Aditya Dhar Diwan, appears on behalf of Shri Prasoon Agrawal, Advocate For Respondent : Shri Shobhit Koshta, Advocate Hon’ble Shri Justice Radhakishan Agrawal

Order on Board

23/01/2026

1. This is an acquittal appeal filed under Section 378(4) of the Cr.P.C. by the complainant/appellant against the order dated 28.06.2018 passed by the Judicial Magistrate First Class, Champa, District – Janjgir- Champa (C.G.), in Complaint Case No.1440/2008 which has been dismissed under Sections 256(1) of Cr.P.C. as the complainant was not present on the date of hearing, and consequently, the respondent/accused was discharged of the charge under Section 138 of the Negotiable Instruments Act, 1881 by the said Court.

2. The brief facts of the case are that the complainant/appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent/accused. It is alleged that the accused had availed the services of repair and servicing of his car from the complainant’s workshop. Towards discharge of the said liability, the accused issued two cheques bearing Nos. 063473 of Rs.30,000/- and 063474 of Rs.20,000/- dated 08.04.2008 and 10.05.2008 respectively. Upon presentation, both cheques were dishonoured by the bank on account of insufficiency of funds. Consequently, the complainant initiated proceedings against the accused under Section 138 of the Negotiable Instruments Act, 1881. The said allegations were, however, denied by the accused/respondent.

3. Learned trial Court after taking statement of the complainant registered the complaint case under Section 138 of the Negotiable Instruments Act. The ordersheets of Trial Court would show that after completion of the complainant’s evidence, the case was fixed for defence evidence on 19.06.2018 and 28.06.2018 but on the said dates, complainant as well as his counsel did not appear before the learned trial Court. Therefore, the learned trial Court dismissed the complaint case for want of prosecution and discharged the respondent from the charge under Section 138 of the Negotiable Instruments Act. Hence this appeal filed by the appellant.

4. Learned counsel for the appellant/complainant submits that the learned trial court, while passing the impugned order, failed to appreciate that this was the first occasion on which the appellant could not appear either personally or through his counsel. In such circumstances, the adoption of a rigid and technical approach was wholly unwarranted, and the complaint ought not to have been dismissed at the very first instance of non-appearance. He further submits that when the case was listed before the Trial Court for cross-examination of the defence witnesses the complainant could not appear however, due to bona fide mistake occurred on behalf of the complainant’s counsel, complainant could not appear before the learned trial Court. On the aforesaid grounds, it is submitted that the impugned order deserves to be set aside and the complaint be restored for adjudication on merits.

5. Learned counsel for the respondent supported the impugned order.

6. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:-

“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 acq