A dismissal of a complaint for non-prosecution under Section 256(1) of the CrPC constitutes an acquittal, and the remedy lies in appealing under Section 378(4), rather than invoking Section 482.

ORDER :

M. NAGAPRASANNA, J.

The petitioner is before this Court calling in question order dated 19-12-2023 passed by the concerned Court in C.C.17407 of 2022 rejecting the complaint, on account of the continuous absence of the petitioner, for its non-prosecution.

2. Facts in brief, germane, are as follows:

The petitioner is the complainant, respondent the accused. The accused and the petitioner have a transaction. The transaction is to an amount of ₹ 9,00,000/-. The transaction goes wrong and the proceedings are instituted by the complainant on account of dishonour of a cheque that is said to have been issued by the respondent/accused. The proceedings are taken up before the Court and the petitioner is said to have remained continuously absent. Owing to the absence of the petitioner, the Court rejected the proceedings for its default by the following order:

“Called at 4.30 Ρ.Μ.

Counsel for complainant and complainant absent. Counsel for accused prays to dismiss the case and further submits that the complainant himself is accused in several cases and avoiding the court and the present case is filed to harass the accused.

Already sufficient opportunity given to the complainant to appear before the court for his cross examination. The party is not diligent but still on humanitarian ground and to avoid multiplicity of proceedings the court has adjourned the case several times.

However from the conduct of the parties it appears that the party isn't at all interested in the case.

Strict directions and reminders were given to dispose the cheque bounce cases within time frame. In order to implement the guidelines of Hon'ble Apex court and Hon'ble High court, to expedite the trial, this court is seeking assistance of bar members for speedy disposal.

The Hon'ble Apex court in Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [(2011) 9 SCC 678 held "...A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit whether the plaintiff or the defendant must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they do not, they do so at their own peril..."

In view of the above, this court dismisses the complaint for non-prosecution and default.”

Against the said order of dismissal of the complaint for default, the petitioner/complainant is before this Court invoking the jurisdiction of this Court under Section 482 of the Cr.P.C.

3. Heard Sri R Shashi Kumar, learned counsel appearing for petitioner and Sri Chethan A, learned counsel appearing for respondent.

4. The learned counsel appearing for the petitioner would seek to place reliance upon a judgment rendered by the co- ordinate bench to contend that Section 482 of CrPC is the remedy against dismissal of a complaint for its non- prosecution, therefore, would submit that the order be quashed and the matter be remitted back to the hands of the concerned Court.

5. The learned counsel appearing for the respondent/accused would submit that dismissal of a complaint before the concerned Court albeit for non-prosecution would amount to an acquittal. If it amounts to an acquittal, the appeal under Section 378(4) of CrPC would be maintainable and not a petition under Section 482 of CrPC. The learned counsel would seek to place reliance upon certain judgments to buttress his submission, which would bear consideration qua their relevance in the course of the order.

6. I have given my anxious consideration to the submissions made by the respecti