A trial court should not dismiss a complaint under Section 138 of the Negotiable Instruments Act for a single default in appearance without exercising judicial discretion to adjourn or dispense with attendance, as doing so may lead to a failure of justice.

Whether approved for reporting? ¹Whether the reporters of the local papers may be allowed to see the judgment?

Sandeep Sharma, Judge

(oral):

BeinCg aggrieved and dissatisfied with order dated 8.12.2025 passed by learned Chief Judicial Magistrate, Shimla, Districth Shimla, Himachal Pradesh in case No. 349 of 2024, whereby cgomplaint having been filed by the appellant/claimant came to be dismissed for non-prosecution, appellant-complainant has approached this Court in the instant proceedings, praying therein to set aside the aforesaid order and restore the complaint filed under Section 138 of the Negotiable Instruments Act.

Precisely, the facts of the case as emerge from the record are that the appellant-complainant instituted proceedings under Section 138 of the Negotiable Instruments Act (for short ‘Act’) in the competent Court of law, alleging therein that cheque bearing No.702376, dated 29.11.2023, amounting to Rs. 1,17,764/-, having been issued by the respondent-accused towards discharge of his lawful liability came to be returned by the bank with Hthe remarks “funds insufficient”. Since despite having received legal notice, accused failed to make the payment good well within stipulated time, complainant was compelled to initiate proceedings under Section 138 of the Act in the competent Court of law, but same was dismissed for non-prosecution by learned Court below vide order dated 8.12.2025. In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order and restore the complaint with a direction to learned Court below to decide the same on merits.

Precisely, the grouse of the appellant as has been highlighted in the appeal and further canvassed by Ms. Shashi Kiran, ilearned counsel for the appellant, is that case was called several times on 8.12.2025 by the court below, but neither counsel of appellant appeared before the court below nor complainant was in the know of the listing of the case on the afore date, therefore, the learned trial Court ought not have straightway proceeded to dismiss the complaint for want of prosecution.

Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 8.12.2025, matter was adjourned three times, enabling complainant or its counsel to come present, but certainly Court ought not have Hstraightway proceeded to dismiss the complaint for want of prosecution, rather in such like situation, Court could either issue notice to the complainant or its counsel, specifically calling upon him/her to come present through its authorized officer or through its counsel.

In terms of Section 143 of the Negotiable Instruments 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 in the trial initiated on the basis of complaint under Section 138 of the Act. Section 256 of Cr.P.C, specifically deals with a situation of non-appearance of the complainant or death of the complainant.

At this stage, it would be apt to take note of Section 256 Cr.P.C (now Section 279 BNSS), which reads as under:-

“279 BNSS. 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, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of