Himachal Pradesh High Court
Manoj Kumar Pathania vs Nirmala Devi on 27 February, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.150 of 2025 Date of Decision: 27.02.2026 .
_______________________________________________________ Manoj Kumar Pathania .......Petitioner Versus Nirmala Devi ... Respondent Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 of For the appellant: Mr. Loveneesh Singh Thakur, Advocate.
For the Respondent: Mr. G.R. Palsra, Advocate. _______________________________________________________ Sandeep Sharma, Judge(oral):
rt Being aggrieved and dissatisfied with order dated 26.12.2024 passed by learned Chief Judicial Magistrate, Mandi, District Mandi, Himachal Pradesh, whereby Criminal Complaint No. 667 of 2023, titled as Manoj Kumar Pathania Vs. Nirmala Devi, came to be dismissed in default for want of prosecution, appellant-
complainant has approached this Court in the instant proceedings filed under Section 419(4) of Bharatiya Nagrik Suraksha Sanhita, praying therein to set aside the aforesaid order and restore the complaint filed under Section 138 of the Negotiable Instruments Act.
2. Precisely, the grouse of the petitioner as highlighted in the petition and further canvassed by Sh. Loveneesh Singh Thakur, learned Counsel for the appellant/complainant (in short "appellant"), is that on account of unavoidable circumstances, appellant/complainant 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 02/03/2026 20:31:29 :::CIS 2was unable to produce his evidence on the given date and learned trial Court proceeded to dismiss the complaint for want of prosecution.
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Mr. Loveneesh, submitted that appellant was pursuing his case diligently and was appearing regularly, but on 26.12.2024, appellant could not appear before learned trial Court as he was ill and was advised bed rest by the doctor, which information was given to the of counsel, who also happened to be out of station due to some personal difficulty. Since on that day, none appeared on behalf of the rt complainant, Court concerned after adjourning the matter for some time, proceeded to dismiss the same for non-prosecution. In the aforesaid background, complainant has approached this Court in the instant proceedings, praying therein to set aside aforesaid order.
3. To the contrary, Mr. G.R. Palsra, learned counsel for the respondent/accused (in short "respondent"), vehemently argued that since complainant had not come present to pursue his complaint, no illegality can be said to have been committed by the learned trial Court, while passing impugned order. He submitted that in criminal proceedings complainant and accused, unless exempted are always under obligation to put in appearance on each and every date.
4. Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 26.12.2024, case was listed for appellant's evidence but appellant ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 3 failed to put in appearance, whereafter Court below after repeatedly calling out the case, dismissed the complaint for want of prosecution .
and acquitted the respondent for commission of offence punishable under Section 138 of Negotiable Instruments Act. No doubt, perusal of the Zimini orders placed on record reveal that on 26.12.2024, matter was called repeatedly, enabling complainant or his counsel to of come present, but certainly Court ought not have straightway proceeded to dismiss the complaint for non-prosecution, rather in rt such like situation, Court could either issue notice to the complainant or his counsel, specifically calling upon them to come present in person. Interestingly, Court concerned in the impugned order has observed that non-presence of the complainant does not appear to be un-intentional and non-deliberate, but it is not understood how and on what basis aforesaid finding came to be returned by the Court concerned. Had complainant not put in appearance on previous dates, Court concerned was well within its right to conclude that complainant's absence on the given date is intentional and deliberate.
5. 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 ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 4 with a situation of non-appearance of the complainant or death of the complainant.
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6. 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 of 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:
rt 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."
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 thinks it proper. Proviso to aforesaid section further empowers the Magistrate to dispense with 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, the Magistrate may proceed with the case in absence of the complainant. When the Magistrate, in a summons case, dismisses the ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 5 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, of shall alter or review the same except to correct a clerical or arithmetical error."
8. Having taken note of effect of dismissal of complaint rt 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 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 exercised judicially and fairly without impairing the cause of administration of criminal justice.
9. Similarly in case titled Mohd. Azeem v. A. Venkatesh, 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 ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 6 the part of the complainant, if permitted would result in failure of justice.
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10. 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 of 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 rt 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.
11. In yet another case titled N.K. Sharma's case vs. M/S Accord Plantations Private Limtied 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 is essential on that day for the progress of the case and ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 7 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 of envisaged under Section 256 Cr.P.C.
12. Reliance is placed upon the judgment dated 01.03.2023 rt 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 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 crossexamination 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 specific denial of the aforesaid factual position. However, we find that neither the High ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 8 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 of 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 rt 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 setaside. 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."
13. There is nothing to suggest that prior to 26.12.2024, there was any default on behalf of the appellant in pursuing the complaint and as such, default being singular, ought to have been ignored by the Court and to do substantial justice, it ought to have adjourned the matter to some other date. Dismissal of complaint in default for non-appearance of the complainant on the date fixed, without affording him even a single opportunity, is wholly unjustified.
Since, very effect of dismissal of complaint in default has serious consequence of acquittal of accused, who admittedly had been ::: Downloaded on - 02/03/2026 20:31:29 :::CIS 9 avoiding service, Court below was expected to exercise its discretion with care and caution.
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14. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, the present petition is allowed, order dated 26.12.2024 is quashed and set aside and Criminal Complaint No. 667 of 2023, titled as Manoj Kumar of Pathania Vs. Nirmala Devi is ordered to be restored, with a direction to learned Court below to proceed with the trial from the stage, it was rt dismissed. Petitioner is directed to cause his presence before the Court below on 18.03.2026 for recording the statements of the appellant' witnesses. In case, witnesses, if any, are not produced on the date fixed by the Court below after recording the statement of appellant, Court below shall be at liberty to pass appropriate orders.
15. 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 cost of Rs.5000/- payable to the respondent by the petitioner on or before 18.03.2026. Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge February 27, 2026 (sunil) ::: Downloaded on - 02/03/2026 20:31:29 :::CIS