The Bombay High Court has held that a complaint cannot be dismissed for non-prosecution under Section 256 of the Code of Criminal Procedure merely on the basis that both the parties and the Counsels remained absent on few occasion of hearing.

The Court was considering an Appeal against an order whereby the Magistrate dismissed the complaint for want of prosecution, resulting into acquittal of the accused.

The single judge bench of Justice M.M. Nerlikar observed, "Merely on few occasions, if both are absent, that by itself would not be sufficient to pass the order of dismissal for non-prosecution and thereby acquittal of the accused. Considering the attending circumstances appearing on record, it would be just and proper to afford a reasonable opportunity to the appellant to pursue his cause on merits."

The Appellant was represented by Advocate U.V. Chakravarty.

Facts of the Case

The facts of the case are that the Appellant-Complainant and the Respondent-Accused are well acquainted with each other and have cordial relations. The Respondent-Accused- approached the Appellant and demanded ₹2,50,000/- for business purpose which was given to him in the form of loan for a month. Thereafter, the Respondent-Accused towards discharge of his legal liabilities, issued a cheque of ₹2,50,000/- to the Appellant. Upon presentation of the cheque, it was dishonoured and accordingly the Appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the Respondent.

Counsel for the Appellant submitted that the impugned order ought not to have been passed by the Magistrate, as the Appellant was regularly prosecuting and attending the Court. However, the matter was referred to the Lok Adalat to explore the possibilities of settlement between the parties. He further submitted that since no settlement was arrived between the parties, the case was fixed for filing of the affidavit of evidence of the complainant. However, only on two occasions, the affidavit of the complainant could not be filed though the Appellant and his counsel were present in the Court, but the Presiding Officer was on leave on both dates. He averred that the reason for absence was their misconception of the dates allotted by the clerk and it was neither intentional nor deliberate.

Reasoning By Court

The Court pursued the Roznama and noted that on several occasions, the Appellant as well as his Counsel were present and also on few occasions they were absent and that on two or three occasions, the Court was also not available.

It was satisfied with the explanation given by the Counsel for the Appellant for their absence and observed, "Considering the fact that the complaint was dismissed for non-prosecution and the accused was acquitted under Section 256 of the Code of Criminal Procedure, in my opinion, the appellant has given sufficient explanation so as to warrant interference in the order dated 07/01/2023. It is to be noted from the roznama that the matter was referred to the Lok Adalat, however, on certain occasions, the complainant was absent, on certain occasions, the complainant was present, and on certain occasions, the Presiding Officer was on leave. The Court ought to have adopted a liberal approach, as the appellant and his counsel diligently and sincerely attended the Court on multiple occasions."

The Appeal was accordingly allowed.

Cause Title: Amit Sunarlal Shahu vs. Hare Madhav Electronics (2025:BHC-NAG:8844)

Appearances:

Appellant- Advocate U.V. Chakravarty, Advocate A.M. Tirukh

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Bombay High CourtJustice M.M. Nerlikar

Sheetal Joon