Himachal Pradesh High Court
Date Of Decision:25.02.2026 vs M/S Reliable Hospitalities on 25 February, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
1.2026:HHC:4311
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No.637 of 2025
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Date of Decision:25.02.2026
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M/s Rajat Resorts,The Mall Shimla .....Petitioner
Versus
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M/s Reliable Hospitalities .....Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting? 1
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For the Petitioner: Mr. Shakti Bhardwaj, Advocate.
For the Respondent:rt Mr.Jagmohan Singh Chandel, Advocate.
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Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 07.07.2025 passed by learned Judicial Magistrate, First Class, Court No.3, Shimla, District Shimla, H.P, whereby the learned Court below while closing the evidence of the petitioner/complainant has further proceeded to dismiss the complainant for want of prosecution, petitioner/complainant has approached this Court in the instant proceedings filed under Section 442 of the Bhartiya Nagrik Suraksha Sanhita, 2023, praying therein to set aside the aforesaid order and restore the complaint No.280-B of 2020 titled M/s Rajat Resorts vs M/s Reliable Hospitalities.
2. Precisely, the grouse of the petitioner as highlighted in the petition and further canvassed by Sh. Shakti Bhardwaj, learned Counsel for the petitioner/complainant is that on account of unavoidable circumstances, petitioner/complainant was unable to produce his 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 27/02/2026 20:33:13 :::CIS2.2026:HHC:4311 evidence on the given date and in that regard, plausible explanation was rendered on record but yet learned Court below proceeded to dismiss .
the complaint. Mr.Shakti Bhardwaj, learned Counsel for the petitioner/complainant submitted that learned Court below taking note of previous adjournments, if any, taken by the petitioner/complainant, could have closed the evidence of the petitioner/complainant but in no of circumstance, could have dismissed the complaint, which otherwise was required to be decided on the basis of other material i.e. pleadings as well as documentary evidence available on record.
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3. To the contrary, Mr. Jagmohan Singh Chandel, learned counsel for the respondent/accused, vehemently argued that there is no illegality in order dated 07.07.2025 because bare perusal of the same reveals that petitioner had been taking time to lead evidence for last so many dates. He submitted that since despite sufficient opportunities, petitioner failed to lead evidence, learned Court below had no option but to pass impugned order. Learned Counsel for the respondent submitted that since petitioner/complainant failed to lead evidence in support of his complaint, no illegality can be said to have been committed by the learned Court below while dismissing the complaint, contents whereof, otherwise only could have been proved by leading evidence, which petitioner had failed to do.
4. Though, having heard learned counsel for the parties and perused material on record, this Court finds that since year 2022, petitioner/complainant had been taking time to produce evidence, but on one pretext or other, he failed to lead evidence. On 28.11.2024, ::: Downloaded on - 27/02/2026 20:33:13 :::CIS 3.2026:HHC:4311 learned Court below, while imposing cost of Rs.1500/-granted further time to produce CWs on 07.07.2025,but unfortunately even on that .
date, no evidence was produced and such learned Court below proceeded to pass impugned order.
5. Question which needs to be determined in the case at hand is that "whether Court below after closing the evidence of of complainant, could have dismissed the complaint or not."
6. Though, this Court is of the view that once learned Court below had closed the evidence of the petitioner it ought to have decided rt the complaint on its merits and certainly it could not have dismissed complaint.
7. In terms of Section 143 of the Act, offence under Section 138 of the Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the Act. Section 256 of Cr.P.C, specifically deals with a situation of non-appearance of the complainant or death of the complainant.
8. At this stage, it would be apt to take note of Section 256 Cr.P.C, which reads as under:-
"256. Non-appearance or death of complainant. - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:::: Downloaded on - 27/02/2026 20:33:13 :::CIS
4.2026:HHC:4311 Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the .
Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
9. Bare reading of aforesaid provision of law provides of discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to aforesaid section further empowers the Magistrate to dispense with the rt complainant from his personal attendance, if it is found not necessary and to proceed with the case. If the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of the complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C.
At this stage, it would be profitable to reproduce Section 362 Cr.P.C., herein below:-
362. Court not to alter judgment. -Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
10. Having taken note of effect of dismissal of complaint under Section 138 of the Act, Hon'ble Apex Court in case titled Associated Cement Co. Ltd. v. Keshvanand, reported in (1998) 1 SCC 687, ::: Downloaded on - 27/02/2026 20:33:13 :::CIS 5.2026:HHC:4311 elaborately dealt with the scope of Section 256 Cr.P.C, and held that though, afore Section affords protection to an accused against dilatory .
tactics on the part of the complainant, but, at the same time, it does not mean that if the complainant is absent, the Court can straightway proceed to acquit the accused in invitum. It has been specifically held in the afore judgment that power under Section 256 Cr.P.C must be of exercised judicially and fairly without impairing the cause of administration of criminal justice.
11. Similarly in case titled Mohd. Azeem v. A. Venkatesh, rt reported in (2002) 7 SCC 726, Hon'ble Apex Court held that dismissal of the complaint on account of one singular default in appearance on the part of the complainant, if permitted would result in failure of justice.
12. In case titled S.Anand v. Vasumathi Chandrasekar, reported in (2008) 4 SCC 67, Hon'ble Apex Court also deprecated practice of trial Court in dismissing the complaint on account of default in appearance. In the afore case complaint under Section 138 of the Act was dismissed by the trial Court exercising the power under Section 256 Cr.P.C on failure of the complainant or her power of attorney or the lawyer appointed by her to appear in Court on the date of hearing fixed for examination of witnesses on behalf of the defence. Hon'ble Apex Court after having considered the provisions of Section 256 Cr.P.C, observed that Court instead of disposal of a complaint in default, could have proceeded to decide the matter on merits on the basis of evidence already adduced on record by the complainant and the statement of accused recorded under Section 313 Cr.P.C.
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13. In yet another case titled N.K. Sharma's case vs. M/S Accord Plantations Private Limited and another, reported in 2008(2) .
Latest HLJ 1249, Co-ordinate Bench of this Court relying upon Associated Cement Co. Ltd.'s case (supra), categorically held that when the Court notices that complainant is absent on a particular day, it must consider that whether the personal attendance of the complainant of is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason and if the situation does not justify the case being rt adjourned, then only Court is free to dismiss the complaint and acquit the accused, but if the presence of complainant on that day was quite unnecessary then resorting to the step of axing down the complaint, may not be a proper exercise of power envisaged under Section 256 Cr.P.C.
14. Reliance is placed upon the judgment dated 01.03.2023 passed by Hon'ble Apex Court in M/s BLS Infrastructure Limited versus M/s Rajwanti Singh and others in Criminal Appeal Nos. 657- 664 of 2023, where in similar facts and circumstances, Hon'ble Apex Court held that the action of learned Magistrate not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere non appearance of the complainant. Relevant paras No.13 and 14 of afore judgment are as under:-
"13. In the instant case, we notice that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further ::: Downloaded on - 27/02/2026 20:33:13 :::CIS 7.2026:HHC:4311 witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant's cross-
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examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1's cross-examination in the above three complaint cases was adopted. There appears no of specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid rt position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere nonappearance of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside.
14. For the reasons above, the order(s) of the High Court as well as of the learned Magistrate are set- aside. The proceedings shall stand restored to their original number(s) on the file of the learned Magistrate and the prosecution shall now proceed from the stage ::: Downloaded on - 27/02/2026 20:33:13 :::CIS 8.2026:HHC:4311 where it was when the order of acquittal/dismissal of the complaint(s) was passed."
15. Factum of payment, if any, made by the respondent-
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accused to the complainant, which has been otherwise seriously disputed by learned counsel for the petitioner-complainant, cannot be gone into the instant proceedings, rather same can be ascertained in the main proceedings filed under Section 138 of the Negotiable of Instruments Act.
16. Consequently, in view of the detailed discussion made rt hereinabove as well as law taken into consideration, the present petition is allowed, order dated 07.07.2025 is quashed and set aside and complaint No.280-B of 2020 , titled M/s Rajat Resort vs M/s Reliable Hospitalities is ordered to be restored, with a direction to learned Court below to proceed with the trial from the stage, it was dismissed.
17. Since this Court is convinced that petitioner has been dragging the matter for long, petitioner is directed to cause his presence before the Court below on 16.03.2026 for recording his statement and thereafter, if prayed for, one date may be given to him for recording the statements of remaining complainant' witnesses. In case, witnesses, if any, are not produced on the date fixed by the Court below after recording the statement of complainant, Court below shall be at liberty to pass appropriate orders.
18. Since, respondent has been unnecessarily dragged into the present litigation and there is inordinate delay in bringing evidence on the part of the petitioner/complainant, this Court deems it fit to impose ::: Downloaded on - 27/02/2026 20:33:13 :::CIS 9.2026:HHC:4311 cost of Rs.5000/-payable to the respondent by the petitioner on or before 16.03.2026.
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Pending applications, if any, also stand disposed of.
(Sandeep Sharma) Judge February 25, 2026 (meera) of rt ::: Downloaded on - 27/02/2026 20:33:13 :::CIS