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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.274 of 2026

Date of Decision: 06.04.2026 __________________________________________________________________________

Bhagat Urban Cooperative Bank Ltd. ……...Petitioner Versus

Sh. Ramesh Sharma …....Respondent Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

__________________________________________________________________________

For the Petitioner: Ms. Potoja Thakur, Advocate, vice Mr. R.S.

Charndel, Advocate.

For the Respondent: None.

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Sandeep Sharma, J. (Oral)

Being aggrieved and dissatisfied with order dated 02.07.2025

passed b y learned Additional Chief Judicial Magistrate, Court No.2, District Shimla, Himachal Pradesh, whereby complaint No.799/2022, titled The Bhagat Urban Cooperative Bank Limited Vs. Sh. Ramesh Sharma, came to be dismissed for want of prosecution and non-appearance, petitioner-complainant (hereinafter, ‘complainant’) has approached this Court in the instant proceedings filed under Section 528 of the BNSS, praying therein to set aside the aforesaid order and restore the complaint

filed under Section 138 of the Negotiable Instruments Act.

2. Having regard to the nature of dispute and order proposed to be passed, this Court sees no necessity to issue notice to respondent-

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accused, who, in the event of notice being issued, would be unnecessarily compelled to engage a lawyer to contest the petition, which can be otherwise disposed of today, on account of settled prop.osition of law and as

such, same is dispensed with.

3. Learned counsel representing the complainant fairly states that on account of some unavoidable circuomstances, complainant was unable to come present on the date of passing of the impugned order and it was under impression that its counsel will come present and seek further time, however, Court below,u taking note of its absence as well as its counsel, dismissed the comoplaint for want of prosecution as well as non-appearance. 4. Having heard learned counsel for the complainant and perused material adduced on record, this Court finds that on 02.07.2025, case was listed for appearance of the complainant. No doubt, perusal of the zimni order, placed on record reveals that notice issued to complainant received back duly served, but neither complainant nor its counsel came present before the Court below on 02.07.2025, but certainly trial Court ought not have straightway proceeded to dismiss the complaint for want of prosecution and non-appearance, rather in such a situation, Court could either issue fresh notice to the complainant or its counsel, specifically calling upon it to come present or its counsel, or could have adjourned the

matter.

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5. At this stage, it would be apt to take note of Section 279 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, which reads as under:-

“279. Non-appearance or death of complainant.

(1)If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, after giving thirty days' time to the complainant to be present, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the htearing of the case to some other day:Provided that where the comrplainant is represented by an advocate or by the officer conducuting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistorate may, dispense with his attendance and proceed with the

case.

(2)The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

6. Aforesaid provision of

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