The High Court of Himachal Pradesh has reaffirmed that a single instance of non-appearance by a complainant in a cheque bounce case cannot justify automatic dismissal and acquittal of the accused. The judgment underscores the judicial obligation to exercise discretion under Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with due regard to the interests of justice and the stage of proceedings.
Background & Facts
The Dispute
The appellant, Smt. Anita Kanwer, filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the respondent, Sh. Janki Dass Joshi, alleging issuance of a dishonoured cheque for Rs. 5,00,000 as payment for services rendered. The complaint was registered as Criminal Complaint No. 1351/2023 before the Additional Chief Judicial Magistrate, Court No. 2, District Shimla.
Key Facts
- The cheque was presented on 12.11.2022 and returned unpaid on 15.11.2022
- Legal notice under Section 138 was issued on 20.12.2022 and received by the accused on 25.12.2022
- The accused failed to make payment within 15 days of notice
- Complaint was filed on 05.01.2023
- The trial court issued summons to the accused on 10.02.2023
- The accused appeared and pleaded not guilty on 15.03.2023
- The complainant examined two witnesses: CW-1 (herself) and CW-2 (bank official)
- The defence examined one witness on 08.03.2025
- The matter was listed for cross-examination of the defence witness on 08.04.2025
- The complainant was absent on 08.04.2025, though her counsel was present
- The trial court dismissed the complaint in default on the same day
Procedural History
- 12.11.2022: Cheque presented and dishonoured
- 15.11.2022: Cheque returned unpaid by bank
- 20.12.2022: Legal notice issued under Section 138 NI Act
- 25.12.2022: Notice received by accused
- 05.01.2023: Complaint filed under Section 138 NI Act
- 10.02.2023: Summons issued to accused
- 15.03.2023: Accused appeared and pleaded not guilty
- 08.03.2025: Defence examined its witness
- 08.04.2025: Case listed for cross-examination of defence witness; complainant and counsel absent; complaint dismissed in default
- 08.04.2025: Order of dismissal passed by Additional CJM, Shimla
- 16.04.2026: Appeal heard and allowed by High Court of Himachal Pradesh
Relief Sought
The appellant sought quashing of the order dated 08.04.2025 dismissing the complaint, restoration of the complaint to its original stage, and continuation of trial from the point of dismissal.
The Legal Issue
The central question was whether a Magistrate, under Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023, may dismiss a complaint and acquit the accused solely on account of the complainant’s single non-appearance, without considering whether personal attendance was necessary or whether the case could be adjourned or proceeded with in the complainant’s absence.
Arguments Presented
For the Appellant
Learned counsel submitted that the complainant was under the bona fide impression that her counsel would appear and seek adjournment. She had already examined two witnesses and the defence had examined one. The matter was at an advanced stage, and dismissal amounted to denial of justice. Reliance was placed on Associated Cement Co. Ltd. v. Keshvanand, Mohd. Azeem v. A. Venkatesh, and BLS Infrastructure Ltd. v. Rajwanti Singh to argue that dismissal in default is not mandatory and must be exercised judicially.
For the Respondent
The respondent’s counsel contended that under Section 279 BNSS, non-appearance of the complainant entitles the Magistrate to dismiss the complaint. He argued that the complainant’s absence, regardless of reason, is a procedural default that justifies acquittal under the statute. He further submitted that the complainant had no valid excuse and that the trial court acted within its powers.
The Court's Analysis
The Court undertook a detailed examination of Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which provides that if the complainant does not appear, the Magistrate "shall, after giving thirty days' time to the complainant to be present... acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day." The proviso further permits dispensing with the complainant’s personal attendance if represented by counsel or if the Magistrate deems it unnecessary.
The Court emphasized that the provision is not a mechanical tool for dismissal but a discretionary safeguard against dilatory tactics. The Hon’ble Supreme Court in Associated Cement Co. Ltd. v. Keshvanand held that the power under Section 279 must be exercised judicially and fairly, without impairing the administration of criminal justice. The Court observed:
"Power under Section 256 Cr.P.C. (now Section 279 of BNSS) must be exercised judicially and fairly without impairing the cause of administration of criminal justice."
The Court noted that the complainant had already led evidence, the defence had examined a witness, and the matter was poised for cross-examination. Dismissal at this stage, without exploring alternatives such as adjournment or proceeding on recorded evidence, was arbitrary. The Court relied on S. Anand v. Vasumathi Chandrasekar, which held that courts may proceed on the basis of evidence already adduced and the accused’s statement under Section 351 BNSS.
The Court further cited N.K. Sharma v. Accord Plantations, which held that dismissal is only justified if personal attendance is essential and no other course is feasible. The judgment in BLS Infrastructure Ltd. v. Rajwanti Singh was pivotal, wherein the Supreme Court set aside dismissal orders where the complainant had already led evidence and the Magistrate failed to consider whether the case could proceed without the complainant’s presence.
The Court concluded that the trial court’s action was a mechanical exercise of power, devoid of judicial reasoning. The dismissal effectively amounted to an acquittal under Section 403 BNSS, which is final and irrevocable. Such a consequence could not be justified for a single, unexplained absence where the complainant was represented and the case was at an advanced stage.
The Verdict
The appeal was allowed. The order dated 08.04.2025 dismissing Criminal Complaint No. 1351/2023 was quashed and set aside. The complaint was restored to its original number and position. The trial court was directed to proceed with the trial from the stage it was at on 08.04.2025, i.e., cross-examination of the defence witness. The parties were directed to ensure the presence of their clients before the trial court on 06.05.2026. All pending applications stood disposed of.
What This Means For Similar Cases
Dismissal Is Not Automatic
- Practitioners must argue that Section 279 BNSS is discretionary, not mandatory
- A single absence, especially when counsel is present, cannot trigger automatic acquittal
- Courts must consider whether the complainant’s presence is essential on that date
Evidence Can Sustain Proceedings
- Where evidence has been recorded and the accused’s statement under Section 351 BNSS is on record, courts may proceed to judgment without the complainant’s presence
- Cross-examination of defence witnesses can be completed even if the complainant is absent
- Courts must not ignore the principle of audi alteram partem by terminating proceedings prematurely
Adjournment Is Preferred Over Dismissal
- Courts must explore adjournment before resorting to dismissal
- The burden is on the court to record reasons for rejecting adjournment
- Failure to do so renders the dismissal liable to be set aside on appeal
