Court cannot dismiss Section 138 complaint after closing complainant's evidence for non-production of witnesses; must adjudicate on merits using pleadings and documents, exercising Section 256 discretion judicially.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with order dated 07.07.2025 passed by learned Judicial Magistrate, First Class, Court No.3, Shimla, District Shimla, H.P, whereby the learned Court below while closing the evidence of the petitioner/complainant has further proceeded to dismiss the complainant for want of prosecution, petitioner/complainant has approached this Court in the instant proceedings filed under Section 442 of the Bhartiya Nagrik Suraksha Sanhita, 2023, praying therein to set aside the aforesaid order and restore the complaint No.280-B of 2020 titled M/s Rajat Resorts vs M/s Reliable Hospitalities.

2. Precisely, the grouse of the petitioner as highlighted in the petition and further canvassed by Sh. Shakti Bhardwaj, learned Counsel for the petitioner/complainant is that on account of unavoidable circumstances, petitioner/complainant was unable to produce his evidence on the given date and in that regard, plausible explanation was rendered on record but yet learned Court below proceeded to dismiss the complaint. Mr.Shakti Bhardwaj, learned Counsel for the petitioner/complainant submitted that learned Court below taking note of previous adjournments, if any, taken by the petitioner/complainant, could have closed the evidence of the petitioner/complainant but in no circumstance, could have dismissed the complaint, which otherwise was required to be decided on the basis of other material i.e. pleadings as well as documentary evidence available on record.

3. To the contrary, Mr. Jagmohan Singh Chandel, learned counsel for the respondent/accused, vehemently argued that there is no illegality in order dated 07.07.2025 because bare perusal of the same reveals that petitioner had been taking time to lead evidence for last so many dates. He submitted that since despite sufficient opportunities, petitioner failed to lead evidence, learned Court below had no option but to pass impugned order. Learned Counsel for the respondent submitted that since petitioner/complainant failed to lead evidence in support of his complaint, no illegality can be said to have been committed by the learned Court below while dismissing the complaint, contents whereof, otherwise only could have been proved by leading evidence, which petitioner had failed to do.

4. Though, having heard learned counsel for the parties and perused material on record, this Court finds that since year 2022, petitioner/complainant had been taking time to produce evidence, but on one pretext or other, he failed to lead evidence. On 28.11.2024, learned Court below, while imposing cost of Rs.1500/-granted further time to produce CWs on 07.07.2025,but unfortunately even on that date, no evidence was produced and such learned Court below proceeded to pass impugned order.

5. Question which needs to be determined in the case at hand is that “whether Court below after closing the evidence of complainant, could have dismissed the complaint or not.”

6. Though, this Court is of the view that once learned Court below had closed the evidence of the petitioner it ought to have decided the complaint on its merits and certainly it could not have dismissed complaint.

7. 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