2026:CGHC:6881 Digitally signed by PRAKASH PRAKASH KUMAR KUMAR Date:

2026.02.06 NAFR

17:10:02 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 89 of 2018 Pradeep Kumar Gupta S/o R. B. Gupta Aged About 33 Years R/o- Kailash Nagar Plot No. 11, Near M.P. Christian College, Bhilai Nagar, District- Durg, Chhattisgarh, ... Appellant versus K. Nokaiya R/o- Quarter No. 3, B- Road 10, Sector-8, Bhilai Nagar, Police Station- Bhilai Nagar, District-Durg, Chhattisgarh.

... Respondent For Appellant : Mr. Aditya Shrivastava, Advocate on behalf of Mr. B.P. Singh, Advocate For Respondent : None Hon’ble Shri Justice Radhakishan Agrawal

Order on Board

06/02/2026

1. This is an acquittal appeal filed under Section 378(4) of the Cr.P.C. by the complainant/appellant against the order dated 29.06.2017 passed by the Judicial Magistrate First Class, District – Durg (C.G.), in Complaint Case No.954/2013 filed under Section 138 of the Negotiable Instrument Act, 1881 which has been dismissed as the complainant was not present on 29.06.2017 by the said Court.

2. The brief facts of the case is 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 has issued a cheque amounting to Rs.5,50,000/- in favour of the appellant. Upon presentation of the said cheque, the same got 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 learned Trial Court, after recording the statement of the complainant, registered the complaint case under Section 138 of the Negotiable Instruments Act. The said allegations were, however, denied by the accused/respondent.

3. The order sheets of the Trial Court reveal that on 24.12.2016 and

23.02.2017, counsel for the appellant/complainant was present before the Court; however, the accused remained absent on both dates and no representation was made on his behalf. Consequently, the learned Trial Court issued a bailable warrant against the accused. Thereafter, on 10.04.2017 and on subsequent dates, the matter was fixed for the presence of the complainant, but neither the complainant nor his counsel appeared. Accordingly, the learned Trial Court dismissed the complaint case on dated 29.06.2017 for want of prosecution. Aggrieved thereby, the present appeal has been filed by the appellant.

4. Learned counsel for the appellant/complainant submits the impugned order dated 29.06.2017 is perverse, illegal, erroneous and contrary to the material available on record. He further submits that the learned trial court, while passing the impugned order, failed to appreciate that the complainant appeared along with his counsel on earlier dates of hearing and accused was not present. 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 instance of non- appearance. 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. 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 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 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