The Chhattisgarh High Court has reaffirmed that a complaint under Section 138 of the Negotiable Instruments Act cannot be summarily dismissed for a single instance of non-appearance by the complainant without judicial consideration of adjournment or bona fide reasons. This ruling restores the balance between procedural rigor and substantive justice in cheque bounce cases.
Background & Facts
The Dispute
The complainant, Hanuman Sharma, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against P.K. Dalal and Company, alleging that two cheques issued for car repair services were dishonoured due to insufficient funds. The accused denied liability, prompting a criminal prosecution.
Procedural History
The case progressed as follows:
- 2008: Complaint registered under Section 138 after cheque dishonour
- 2008: Trial Court found a prima facie case and framed charges
- 19.06.2018: Case listed for defence evidence; complainant and counsel absent
- 28.06.2018: Case again listed for cross-examination; complainant and counsel absent despite junior counsel’s explanation
- 28.06.2018: Trial Court dismissed complaint under Section 256(1) Cr.P.C. for want of prosecution and discharged the accused
Relief Sought
The appellant sought setting aside of the dismissal order and restoration of the complaint for adjudication on merits, arguing that the absence was due to a bona fide mistake and not wilful neglect.
The Legal Issue
The central question was whether Section 256(1) Cr.P.C. permits automatic dismissal of a complaint under Section 138 NI Act upon the first absence of the complainant, or whether the court must exercise judicial discretion to consider adjournment, bona fide reasons, and the overall conduct of the case.
Arguments Presented
For the Appellant
Counsel argued that the absence on both dates was not intentional or mala fide. On 19.06.2018, the senior counsel was engaged in another court and the junior counsel promptly informed the court. The Trial Court had already found a prima facie case in 2008, and the complainant had pursued the matter since then. Reliance was placed on Associated Cement Co. Ltd. v. Keshvanand and Mohd. Azeem v. A. Venkatesh to argue that dismissal without considering adjournment violates judicial discretion.
For the Respondent
The respondent supported the Trial Court’s order, contending that non-appearance on two consecutive dates constituted abandonment of prosecution under Section 256(1) Cr.P.C., and that the complainant had no valid excuse for non-appearance. The discharge, they argued, was a lawful exercise of the court’s power.
The Court's Analysis
The High Court examined the statutory framework under Section 256(1) Cr.P.C. and the binding precedents of the Supreme Court. It emphasized that the provision does not mandate automatic dismissal but requires the Magistrate to assess whether the complainant’s absence justifies termination of proceedings.
"The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice."
The Court noted that the complainant had appeared consistently prior to the two absences, and the Trial Court had already found a prima facie case. The absence on 19.06.2018 was explained by the counsel’s legitimate conflict, and the court had even adjourned the matter to 28.06.2018. Dismissal on the second occasion without exploring alternatives was arbitrary.
The Court held that Section 256(1) is not a tool for penalising inadvertent lapses but a safeguard against deliberate non-prosecution. The Trial Court’s failure to consider adjournment, despite the complainant’s long-standing pursuit of the case since 2008, rendered the order legally unsustainable.
The Verdict
The appellant succeeded. The Chhattisgarh High Court set aside the dismissal order, held that dismissal for a single absence without judicial discretion is illegal, and directed the Trial Court to proceed with the case on merits. Both parties were directed to appear on 26th February 2026 for further proceedings.
What This Means For Similar Cases
Dismissal Is Not Automatic for First Absence
- Practitioners must argue that Section 256(1) Cr.P.C. requires judicial evaluation of absence, not mechanical dismissal
- A single absence, even if unexplained, does not equate to abandonment unless there is a pattern of neglect
- Courts must record reasons for rejecting adjournment before dismissing a complaint
Prima Facie Case Strengthens Complainant’s Position
- If a prima facie case has been established at the framing stage, dismissal becomes even more suspect
- Courts must weigh the complainant’s conduct over the entire litigation period, not just the last two dates
- Delay or absence must be assessed in context - prolonged litigation (e.g., since 2008) weighs heavily in favour of restoration
Defence Witnesses’ Presence Does Not Justify Dismissal
- The presence of defence witnesses does not negate the complainant’s right to cross-examine
- Dismissal cannot be justified on grounds that the accused is ready to proceed
- The complainant’s right to present rebuttal evidence is integral to fair trial under Article 21
