Himachal Pradesh High Court
Himachal Pradesh Minorities Finance ... vs Shri Lal Singh on 8 May, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal (A-SB) No.24 of 2026 Date of Decision: 8.5.2026 .
_______________________________________________________ Himachal Pradesh Minorities Finance and Development Corporation .......Petitioner Versus Shri Lal Singh ... Respondent _______________________________________________________ Coram:
of Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Ms. Shashi Kiran, Advocate. For the Respondent:
rt Nemo.
____________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated 8.12.2025 passed by learned Chief Judicial Magistrate, Shimla, District Shimla, Himachal Pradesh in case No. 349 of 2024, whereby complaint having been filed by the appellant/claimant came to be dismissed for non-prosecution, appellant-complainant has approached this Court in the instant proceedings, praying therein to set aside the aforesaid order and restore the complaint filed under Section 138 of the Negotiable Instruments Act.
2. Precisely, the facts of the case as emerge from the record are that the appellant-complainant instituted proceedings under Section 138 of the Negotiable Instruments Act (for short 'Act') 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 09/05/2026 11:41:00 :::CIS 2in the competent Court of law, alleging therein that cheque bearing No.702376, dated 29.11.2023, amounting to Rs. 1,17,764/-, having been issued by the respondent-accused towards discharge of his .
lawful liability came to be returned by the bank with the remarks "funds insufficient". Since despite having received legal notice, accused failed to make the payment good well within stipulated time, complainant was compelled to initiate proceedings under Section 138 of of the Act in the competent Court of law, but same was dismissed for non-prosecution by learned Court below vide order dated 8.12.2025.
rt In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order and restore the complaint with a direction to learned Court below to decide the same on merits.
3. Precisely, the grouse of the appellant as has been highlighted in the appeal and further canvassed by Ms. Shashi Kiran, learned counsel for the appellant, is that case was called several times on 8.12.2025 by the court below, but neither counsel of appellant appeared before the court below nor complainant was in the know of the listing of the case on the afore date, therefore, the learned trial Court ought not have straightway proceeded to dismiss the complaint for want of prosecution.
::: Downloaded on - 09/05/2026 11:41:00 :::CIS 34. Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 8.12.2025, matter was adjourned three times, enabling complainant or its counsel to .
come present, but certainly Court ought not have straightway proceeded to dismiss the complaint for want of prosecution, rather in such like situation, Court could either issue notice to the complainant or its counsel, specifically calling upon him/her to come present of through its authorized officer or through its counsel.
5. In terms of Section 143 of the Negotiable Instruments rt 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 in the trial initiated on the basis of 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.
6. At this stage, it would be apt to take note of Section 256 Cr.P.C (now Section 279 BNSS), which reads as under:-
"279 BNSS. 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 subse- quent thereto to which the hearing may be adjourned, the com- plainant 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:
Provided that where the complainant is represented by a plead- er or by the officer conducting the prosecution or where the Ma- gistrate is of opinion that the personal attendance of the com-::: Downloaded on - 09/05/2026 11:41:00 :::CIS 4
plainant 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, ap-
ply also to cases where the non-appearance of the complainant is due to his death."
.
7. Bare reading of aforesaid provision of law provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he/she thinks it proper. Proviso to aforesaid section further empowers the Magistrate to dispense with of the 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, rt 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 (now Section 403 of the BNSS), which reads as under:
403 BNSS. 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."
8. 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, elaborately dealt with the scope of Section 256 Cr.P.C, and ::: Downloaded on - 09/05/2026 11:41:00 :::CIS 5 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 (now Section 279 BNSS) must be exercised judicially and fairly without impairing the cause of administration of criminal justice.
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9. Similarly in case titled Mohd. Azeem v. A. Venkatesh, reported in (2002) 7 SCC 726, Hon'ble Apex Court held that dismis-
rt sal 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.
10. In case titled S.Anand v. Vasumathi Chandrasekar, re-
ported in (2008) 4 SCC 67, Hon'ble Apex Court also deprecated practice of trial Court in dismissing the complaint on account of de-
fault 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 (now Section 279 BNSS) on failure of the complai-
nant or her power of attorney or the lawyer appointed by her to ap-
pear in Court on the date of hearing fixed for examination of wit-
nesses on behalf of the defence. Hon'ble Apex Court after having considered the provisions of Section 256 Cr.P.C (now Section 279 ::: Downloaded on - 09/05/2026 11:41:00 :::CIS 6 BNSS), observed that Court instead of disposal of a complaint in de-
fault, could have proceeded to decide the matter on merits on the ba-
sis of evidence already adduced on record by the complainant and .
the statement of accused recorded under Section 313 Cr.P.C. (Sec-
tion 351 BNSS).
11. In yet another case titled N.K. Sharma vs. M/S Accord Plantations Private Limtied and another, reported in 2008(2) Latest of HLJ 1249, Co-ordinate Bench of this Court relying upon Associated Cement Co. Ltd.'s case (supra), categorically held that when the rt Court notices that complainant is absent on a particular day, it must consider that whether the personal attendance of the complainant 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 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.
12. 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.
::: Downloaded on - 09/05/2026 11:41:00 :::CIS 7657-664 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 pa-
ras 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 of summon and examine further 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-examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was rt sought in other cases. Rather, CW-1's cross-examination in the above three complaint cases was adopted. There appears no 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 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 where it was when the order of acquittal/dismissal of the complaint(s) was passed."
::: Downloaded on - 09/05/2026 11:41:00 :::CIS 813. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, the present appeal is allowed, order dated 8.12.2025 passed by the learned Chief .
Judicial Magistrate Shimla, is quashed and set aside and case No. 349 of 2024, is ordered to be restored on its original number and position, with a direction to learned Court below to proceed with the trial from the stage, it was dismissed.
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14. Learned counsel representing the parties undertake to cause presence of their respective clients before the learned Court rt below on 12.5.2026, enabling Court below to proceed with the matter.
Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge May 8, 2026 manjit ::: Downloaded on - 09/05/2026 11:41:00 :::CIS