The dismissal of a complaint due to non-prosecution must follow procedural requirements; failure to notify parties negates the dismissal under applicable legal standards.

ORDER :

Aditya Kumar Mohapatra, J.

1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned counsel for the State-Opp. Party No.1. Since no notice has been issued, none appears on behalf of the accused-Opposite Party Nos.2 and 3. Perused the application as well as the prayer made therein.

3. By filing the present application under Section 528 of the BNSS , the Petitioner seeks to challenge order dated 07.02.2025 passed by the learned JMFC-III (Cog. Taking) Court, Cuttack in 1.C.C Case No.193 of 2020. The abovenoted 1.C.C case was filed at the instance of the present Petitioner as complainant therein alleging commission of an offence punishable under Section 138 of NI Act.

4. Learned counsel for the Petitioner at the outset contended that the complainant alleging commission of an offence under Section 138 of NI Act approached the learned SDJM (Sadar), Cuttack by filing 1.C.C No.193 of 2020 against the Opposite Party Nos.2 and 3. He further submitted that after recording of the statement of the complainant under Section 200 of the Cr.P.C, the learned Magistrate proceeded to issue summons to the accused- Opposite Party Nos.2 and 3. While this was the position, Covid-19 pandemic intervened. He further submitted that although the matter was listed on several occasions, however, the summons could not be served on the accused-Opposite Party Nos.2 and 3. Finally, the matter was posted for consideration of the tracking report with regard to the service of summons on the Opposite Party Nos.2 and 3. On 07.02.2025, the matter was listed specifically for hearing on the tracking report. However, the complainant was absent and no steps were taken on his behalf. Since the complainant was found absent on 07.02.2025 and no steps were taken in that regard, the learned trial court taking into consideration the fact that the case is of the year 2020 dismissed the complaint. Being aggrieved by such order, the Petitioner has approached this Court by filing the present application.

5. In course of his argument, learned counsel for the Petitioner referred to the judgment of the Hon’ble Supreme Court in Ranjit Sarkar vs. Ravi Ganesh Bhardwaj & Ors. decided in SLP (Crl.) No.205 of 2025 vide its judgment dated 17.03.2025. On perusal of the said judgment, it appears that somewhat of an identical question was taken up by the Hon’ble Supreme Court for adjudication. Learned counsel for the Petitioner referring to paragraph-18, 19 and 20 of the judgment, stated before this Court that since the accused was posted for hearing of the tracking report, the learned court below could not have exercised the power under Section 256 of the Cr.P.C and the complaint petition could not have been dismissed. He further submitted that in the abovenoted judgment of the Hon’ble Supreme Court, the Hon’ble Supreme Court, after a thorough discussion of the factual background of the case, was pleased to hold that the impugned order dated 15.07.2024 passed in CRR No.359 of 2023 is unsustainable in law and, as such, the same was set aside. As a consequence thereof, the complaint case No.2 of 2017 was revised on the file of the Judicial Magistrate. Relying heavily upon the judgment of the aforesaid Hon’ble Supreme Court, learned counsel for the Petitioner contended that the ratio laid down in the aforesaid judgment squarely applies to the facts of the present case. Hence, the impugned order dated 07.02.2025 be set aside and the complaint case be restored to its original file and number.

6. So far the