A complaint cannot be dismissed and the accused acquitted under Section 256 of the CrPC for a single default of appearance if the complainant's presence was not essential for the progress of the case on that specific date.

Judgment on Board

1. The present acquittal appeal has been listed on admission.

2. Since the Respondent has already made appearance, the appeal is formally admitted for hearing and with the consent of the parties, it has been heard finally today itself.

3. The present acquittal appeal has been filed by the appellant against the order dated 29.06.2022 passed by learned Judicial Magistrate First Class, Bilaspur in Criminal Case (Negotiable Instrument Act, 1881) No. 607/2019, whereby the complaint case filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed for want of prosecution.

4. The brief facts of the case are that the complainant has filed a complaint case under Section 138 of Negotiable Instrument Act, against the Respondent before the learned Judicial Magistrate First Class, Bilaspur which was registered as Criminal Case (Negotiable Instrument Act) No. 607/2019. The said criminal complaint case was filed on 28.03.2019 and it was registered on 03.07.2019 and summons were issued to the accused for one or other reason summons could not be served time to time issued by the learned trial Court and on 29.06.2022 when the case was fixed for appearance of the accused, the petitioner complainant could not appear and the case was dismissed for want of prosecution and the Respondent accused was acquitted.

5. The said order dated 29.06.2022 was challenged by the petitioner complainant by filing the CRMP No. 728/2024 before this Court and initially this Court has dismissed the application for grant of leave to file acquittal appeal on the ground of limitation vide order dated 16.08.2024 the said order dated 16.08.2024 passed by coordinate Bench of this Court in CRMP No. 7282024 was challenged by the petitioner complainant before the Hon’ble Supreme Court in Criminal Appeal No. 5538/2025 SLP (Crl.) No. 948/2025 which was allowed on 17.12.2025 and the CRMP No. 728/2024 was restored to its original number, delay was condoned and restored the matter for its considering on merits. Thereafter, on 15.01.2026, the CRMP was allowed leave to file appeal is granted to the appellant/complainant.

6. Learned counsel appearing for the appellant would submit that the order passed by learned trial Court is bad in law. After filing of the complaint case as well as after registration, the process was issued to the Respondent and the case was fixed for his appearance. The presence of the complainant was not necessary on that day. Since the complainant as well as his counsel did not appear on that day, the learned trial Court has dismissed the case for want of prosecution. The learned trial Court ought to have given further date of appearance of the parties instead of dismissing it. The case involved the huge amount of money of the complainant and he is prosecuting his complaint case under Section 138 of Negotiable Instrument Act, 1881 and it must be heard on merits and disposed of on its own merits, therefore, the impugned order dated 29.06.2022 passed by learned trial Court be set aside and the matter may be remitted back to the learned trial Court for consideration on merits.

7. On the other hand, learned counsel appearing for the Respondent accused supported the impugned order passed by learned trial Court and submitted that the complainant repeatedly not appearing in the proceeding, therefore, considering his non-appearance, the learned trial Court h