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2025 Supreme(All) 3203
IN THE HIGH COURT OF ALLAHABAD
RAJIV GUPTA, SAMIT GOPAL, JJ.
Abhishek Mishra @ Pintu – Appellant
Versus
State of U.P. and Another – Respondent
Application U/s 482 No. 3099 of 2024
Decided On : 05-04-2025
For the Appellant : Vijay Kumar Pandey
For the Respondent: Ashok Kumar Gupta
Dismissal of complaints under Section 138 for non-prosecution does not equate to acquittal under Section 256(1) Cr.P.C. and can only be challenged via revision, not appeal.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138 and 143 - Criminal Procedure Code, 1973 - Sections 203, 256, and 378(4) - Dismissal of complaint for want of prosecution does not amount to acquittal under Section 256(1) Cr.P.C. and is not appealable under Section 378(4) but subject to revision under Section 397. The dismissal was based on insufficient evidence and lack of prosecution efforts. The court refrained from answering whether the prior case reliant on a dismissal in default was correctly decided. The court held that proceedings under the N.I. Act are summary in nature and governed by specific provisions. (Paras 10-12)
Findings of Court:
The Larger Bench confirmed that the dismissal for non-prosecution cannot be deemed an acquittal and thus no appeal lies under 378(4) Cr.P.C.
Result: Reference returned without further deliberation.
Key Points: - The proceeding under the Negotiable Instruments Act is a summary proceeding (!) (!) (!) . - Dismissal of a complaint under Section 138 for non-prosecution does not amount to acquittal under Section 256(1) Cr.P.C. (!) . - Such dismissal is not appealable under Section 378(4) Cr.P.C. (!) . - The only available remedy against the dismissal is filing a revision under Section 397 Cr.P.C. (!) . - The court declined to examine the correctness of the earlier case Vinay Kumar Vs. State of U.P. (!) (!) .
Whether dismissal of a complaint under Section 138 of the Negotiable Instruments Act for non-prosecution amounts to acquittal under Section 256(1) of the Code of Criminal Procedure?
Whether an order dismissing a complaint for want of prosecution is appealable under Section 378(4) of the Code of Criminal Procedure?
Whether the remedy against such a dismissal lies only in revision under Section 397 of the Code of Criminal Procedure?
JUDGMENT :
SAMIT GOPAL, J.
1. A reference has been made by learned Single Judge in paragraph 13 of an order dated 13.03.2024 which reads as under:-
"13. In this view of the matter, judicial propriety demands that this matter be referred to a Larger Bench to decide these questions:
(i) Whether the dismissal of complaint u/s 138 of the Act, 1881 for want of prosecution will amount to acquittal u/s 256(1) Cr.P.C. and same can be challenged in appeal u/s 378(4) Cr.P.C. or is that order reviseable u/s 397 Cr.P.C.?
(ii) Whether the case of Vinay Kumar (supra) has been correctly decided by holding that against the dismissal of complaint u/s 138 of the Act, 1881, appeal lies u/s 378(4) Cr.P.C. not the revision?"
2. Vide order dated 18.04.2024 Hon’ble The Chief Justice has constituted the present Larger Bench in the matter.
3. Heard Shri Vijay Kumar Pandey, learned counsel for the applicant, Shri Sunil Vashishth, Holding Brief of Shri Ashok Kumar Gupta, learned counsel for the O.P. No.2 and Shri Shashi Shekhar Tiwari & Shri Jitendra Kumar Jaiswal, learned counsels for the State/O.P. No.1 and perused the records.
4. The entire issue before the learned Single Judge was of challenge of an order dated 26.10.2019 passed by the Additional Sessions Judge/F.T.C. (Crime Against Women), Jaunpur in Criminal Revision No. 67/2019 ( Shivnath Pandey Vs. Abhishek Mishra @ Pintu ) and the order dated 18.08.2023 passed by the Additional Civil Judge (J.D.)/Judicial Magistrate-IIIrd, Jaunpur in Case No. 311/2022 ( Shivnath Pandey Vs. Abhishek ), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act" ) Police Station Shahganj, District Jaunpur.
5. Vide order dated 13.03.2019 a compliant filed by the complainant was dismissed by the Additional Chief Judicial Magistrate-IInd, Jaunpur under Section 138 N.I. Act on the ground that matter has been pending since the year 2018 but despite passage of 01 year no arguments are being advanced for summoning. The records contain insufficient evidence and their does not appear any ground for proceeding. Thus, due to unavailability of sufficient material, the complaint is liable to be dismissed. The Court thus dismissed the said complaint on the insufficiency of material.
6. Against the said order 13.03.2019 a Criminal Revision No. 67/2019 ( Shivnath Pandey Vs. Abhishek Mishra @ Pintu ) was filed which was allowed vide judgement & order dated 26.10.2019 and the impugned order dated 13.03.2019 therein was set-aside with a direction that the complainant to be afforded an opportunity of hearing and the matter be decided on its merit.
7. Subsequently vide order dated 18.08.2023 the accused-applicant was summoned for offence under Section 138 N.I. Act.
8. The said two orders were thus subject matter of challenge in the present petition.
9. The learned Single Judge passed an order dated 13.03.2024 by framing the aforesaid questions and referring the matter to a Larger Bench. The matter is thus before this Larger Bench. The order is quoted herein below:-
"1. Heard learned counsel for the applicant, Sri Ashok Kumar Gupta, learned counsel for opposite party no.2 and Sri Rajeev Kumar Sonkar, State Law Officer for the State.
2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Case No.311 of 2022 (Old No.744 of 2018) (Shivnath Vs. Abhishek), under Section- 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Shahganj, District-Jaunpur, pending in the Court of learned Additional Civil Judge (J.D.)/Judicial Magistrate Third, Jaunpur, as well as impugned order dated 26.10.2019.
3. The contention of learned counsel for the applicant is that the complaint of the opposite party no.2 was rejected by order dated 13.03.2019 for non-prosecution as well as for not producing any evidence despite giving repeated opportunities and against that order, revision was preferred by the opposite party no.2, which was allowed by orde
