Vikram Kumar v. Ranjit Kumar

H.P (learned Trial Court), vide which the complaint filed by the petitioner (complainant before the learned Trial Court) was dismissed for non-prosecution. (The parties shall hereinafter be 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 referred to in the same manner as they were arrayed before the learned Trial Court for convenience)

2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned trial Court for taking action against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (N I Act). The learned Trial Court recorded the preliminary evidence and ordered the summoning of the accused vide order dated 25.10.2023. The complainant did not appear before the learned Trial Court on 03.12.2025, and the learned Trial Court dismissed the complaint for non- prosecution.

3. Being aggrieved by the order passed by the learned Trial Court, the complainant has filed the present petition under Section 528 of BNSS (corresponding to Section 482 of the Code of Criminal Procedure “Cr.P.C”).

4. Mr Divya Raj Singh, learned counsel for the petitioner, submitted that the learned Trial Court had passed an order contrary to the provisions of BNSS. Hence, he prayed that 3 the present petition be allowed and the order passed by the learned Trial Court be set aside.

5. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

6. It was laid down by this Court in H.P. Financial Corporation v. Continental Spinners Ltd., 2003 SCC OnLine HP 62, that an order dismissing a complaint under Section 250 Cr.P.C. amounts to an acquittal and no revision or a petition under Section 482 Cr.P.C. lies against such an order. The remedy of the complainant is to file an appeal against an acquittal. It was observed:

4. There is no dispute that the case against the respondents No. 1 and 2 was a summons case. Section 256 of the Code provides for the consequences of non-appearance of a complainant in a summons case after the summons has been issued on the complaint and reads as follows: “256. 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 arty day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the anything shall, notwithstanding Magistrate hereinbefore contained, acquit the accused, unless 4 for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant the prosecution, or where represented by a pleader or by the officer conducting Magistrate is of the 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 sub-s. (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death,”

5. It is clear on a bare reading of the aforesaid provisions that in a case where the summons has been issued on the complaint in a summons case and the complainant fails to appear when the case is called on the day fixed for appearance of the accused, or on any adjourned date of hearing, the trial Magistrate may acquit the accused or adjourn the case or proceed to hear the case, complainant is represented by a pleader.

6. In the case in hand, since the complainant or his advocate was not present, the complaint was dismissed by the impugned order. Evidently, the learned trial Magistrate neither chose to adjourn the case for a future date nor to proceed with the case. Therefore, for all intents and purposes, the impugned order dismissing the complaint has the effect of an acquittal.

7. Since the case was instituted on a complaint and the dismissal of the complaint has the effect of acquittal, therefore, in view of the provisions of sub-sec. (4) of S. 378 of the Code, the remedy of 5 the complainant was to make an application leave to appeal against the seeking special impugned order and present an appeal, which course the complaint had not adopted.

8. Sub-section (4) of S. 401 of the Code provides that where under the Code, an appeal lies, and no appeal is preferred, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Therefore, the petitioner having failed to appeal against the impugned order, the revision petition is not maintainable.

9. Provisions of S. 482 of the Code can also not be invoked where the remedy of appeal was available to the petitioner.

10. In view of the position in law, the present petition is not maintainable and is accordingly dismissed.

7. Therefore, in view of the binding precedent of this Court, the petition under section 528 of BNSS (corresponding to section 482 of Cr.P.C.) is not maintainable.

8. It was submitted that the present petition can be treated under Section 419 of the BNSS. This submission is not acceptable because an appeal against acquittal lies after seeking leave from the Court. No application seeking leave has been filed, and the present petition cannot be treated under Section 419 of the BNSS. 6

9. In view of the above, the present petition is not maintainable and is dismissed as such. However, this order will not prevent the petitioner from availing the remedy as may be permissible under the law.

10. The present petition stands disposed in the aforesaid terms, so also the pending applications, if any. 03rd June, 2026 (ravinder) (Rakesh Kainthla) Judge