Bombay High Court | Occasional Absence No Ground to Dismiss Cheque Bounce Complaint | Magistrate’s Acquittal Order Set Aside, Case Restored for Trial
Safiya Malik
The High Court of Bombay at Nagpur, Single Bench of Justice M.M. Nerlikar ruled that a trial court cannot dismiss a complaint for want of prosecution under Section 256 of the Code of Criminal Procedure solely because the complainant or lawyer missed a few hearings. Stressing that fairness and natural justice require the matter to be decided on its merits rather than on technical lapses, the Court set aside the earlier acquittal and reinstated proceedings under Section 138 of the Negotiable Instruments Act, 1881. The case has been remanded to the trial court with directions to hear it afresh while ensuring both sides have a proper opportunity to present their case
The proceedings originated from a financial transaction between the appellant and the respondent, who were known to each other. On 7 December 2018, the respondent requested a sum of ₹2,50,000 from the appellant for business purposes. The appellant advanced this amount as a hand loan, with the respondent assuring repayment within one month. In discharge of this liability, the respondent issued a cheque for ₹2,50,000. When presented, the cheque was dishonoured. Consequently, the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, which was registered as Summary Criminal Case No. 1989 of 2019 on 3 April 2019 before the Additional Chief Judicial Magistrate, Court No. 5, Akola.
The record shows that the case was adjourned on several occasions. On 22 April 2022, the matter was referred to the Lok Adalat to explore a possible settlement. On 21 July 2022, both the appellant and his counsel were present, but the Presiding Officer was on leave. On 11 August 2022, neither the appellant nor his counsel attended, leading to an adjournment to 21 September 2022. On 21 September 2022, the counsel appeared but the appellant was absent. On 14 October 2022, the counsel was present but the appellant was absent, and the matter was adjourned to 23 November 2022. On 23 November 2022 and 13 December 2022, the Presiding Officer was on leave.
According to the appellant, on 13 December 2022 a request was made to the court clerk to fix the matter for 13 January 2023. However, the case was inadvertently listed for 5 January 2023. Believing that the next date was 13 January 2023, the appellant and his counsel remained absent on 5 January 2023 and again on 7 January 2023. On 5 January 2023, the Magistrate noted that neither the complainant nor his counsel was present and directed them to appear on the next date, failing which the matter would be dismissed. On 7 January 2023, the Magistrate dismissed the complaint for want of prosecution and acquitted the accused under Section 256 of the Code of Criminal Procedure.
The appellant challenged this order before the Bombay High Court. He contended that he had been regularly prosecuting the case, that absence on two dates was inadvertent, and that the order of dismissal was unjustified. The statutory provisions central to the case were Section 138 of the Negotiable Instruments Act, 1881, concerning dishonour of cheque, and Section 256 of the Code of Criminal Procedure, concerning dismissal of complaints for non-appearance.
Justice M.M. Nerlikar recorded that the Magistrate’s order dated 7 January 2023 was passed under Section 256 of the Code of Criminal Procedure. The Court stated: “It appears that the said order was passed under Section 256 of the Code of Criminal Procedure.”
The Court referred to the record of proceedings: “It seems from the roznama that on several occasions, the appellant as well as his counsel were present and also on few occasions they were absent. It is also noticed that on two or three occasions, the Court was not available.”
Examining the sequence of adjournments, the Court stated: “On 22/04/2022, the roznama reflects that the counsel for the appellant was present and the matter was referred to the Lok Adalat. On 21/07/2022, the present appellant was present, the counsel for the appellant was also present, however, the Presiding Officer was on leave. On 11/08/2022, the counsel as well as the complainant was absent and the matter was adjourned to 21/09/2022. On 21/09/2022, the appellant was absent, however, the counsel was present. On 14/10/2022, the counsel for appellant was present, however, appellant was absent, and the next date was fixed as 23/11/2022. Again, on 23/11/2022, the Presiding Officer was on leave, so also on 13/12/2022, however, the next date was fixed as 05/01/2023. On 05/01/2023, the appellant as well as his counsel were absent. The case was again fixed on 07/01/2023, and on the said date, both remained absent and the impugned order was passed.”
Addressing the explanation for absence, the Court observed: “The learned counsel has explained the reasons for their absence, stating that the counsel for the appellant was under the impression that the matter would be fixed on 13/01/2023, as he had informed the court clerk to fix the date accordingly, as the Presiding Officer was not available on 13/12/2022.”
The Court stated its view: “Merely on few occasions, if both are absent, that by itself would not be sufficient to pass the order of dismissal for non-prosecution and thereby acquittal of the accused.”
The Court referred to precedent: “The observations of this Court in the case of Shri Shaikh Akbar Talab (supra), are relevant wherein it is held that the principles of natural justice are required to be followed by giving an opportunity to the complainant to prosecute the complaint on merits, as well as, an opportunity is to be given to the accused to contest the complaint on merits.”
Concluding on this point, the Court recorded: “The Court below ought not to have taken a harsh and hyper-technical view by dismissing the complaint for want of prosecution and accordingly violates procedural safeguards.”
Justice Nerlikar ordered: “The Appeal is allowed.” The Court further held: “The impugned order passed by the Learned Additional Chief Judicial Magistrate, Court No.5, Akola, in Summary Case No.1989/2019, dated 07/01/2023, dismissing the said complaint in default under Section 256 of the Code of Criminal Procedure and consequently acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, is quashed and set aside.”
“Summary Criminal Case No. 1989/2019, stands restored to file at its original stage and the matter is remanded back to the learned Trial Court to decide the same afresh, on its own merits.” Both parties were directed to remain present before the trial court on 22 September 2025.
“The appellant shall proceed with the matter without seeking any adjournment and shall co-operate with the Trial Court. The Trial Court may grant adjournment in exceptional circumstances. The above order is subject to payment of cost of Rs.2,000/-. The cost shall be deposited by the appellant in the Trial Court. The said cost shall be paid to the respondent.”
Advocates Representing the Parties
For the Appellant: Mr. U. V. Chakravarty, Advocate holding for Mr. A. M. Tirukh, Advocate.
Case Title: Amit Sunarlal Shahu v. Hare Madhav Electronics through Proprietor Vijay Motilal Pinjwani
Neutral Citation: 2025: BHC-NAG:8844
Case Number: Criminal Application [APPA] No. 322 of 2023 in Criminal Appeal [Stamp] No. 2237 of 2023
Bench: Justice M. M. Nerlikar
