Bombay High Court: In the present application, the appellant sought leave to appeal against an order by which the Magistrate, taking note of the appellant’s absence, had dismissed the complaint for non-prosecution under Section 256 of the Criminal Procedure Code, 1973 (‘CrPC’), resulting in acquittal of the accused. A Single Judge Bench of M. M. Nerlikar, J., while allowing the appeal, held that opportunity of hearing and right to present the case were statutory incorporation of natural justice by mandating procedural safeguards, and therefore, the Trial Court ought not to have taken a harsh and hyper-technical view by dismissing the complaint for want of prosecution, which accordingly violated procedural safeguards.
Background:
The appellant/complainant and the respondent/accused were well acquainted and had cordial relations. On 07-12-2018, the respondent approached the appellant and demanded Rs 2,50,000 for business purposes. The appellant gave the amount as a hand loan based on the respondent’s assurance to repay within one month. To discharge his liability, the respondent issued a cheque of Rs 2,50,000 to the appellant, which was dishonoured upon presentation. Consequently, the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (‘Negotiable Instruments Act’), which was registered as Summary Criminal Case on 03-04-2019.
After registration, the case was adjourned multiple times. On 05-01-2023, the Additional Chief Judicial Magistrate, passed an order noting the absence of the appellant and his counsel, and warned that the matter would be dismissed for want of prosecution if evidence was not led on the next date. On 07-01-2023, both appellant and counsel remained absent again, and the complaint was dismissed, resulting in acquittal of the accused.
The appellant submitted that the order dated 07-01-2023 ought not to have been passed, as the appellant was regularly attending court. The appellant had contended that the dismissal was unjust, claiming he had regularly attended court and had provided sufficient explanation for his absence. The matter was referred to the Lok Adalat, but no settlement was reached. The case was fixed for filing of affidavit of evidence on 21-07-2022, but on 23-11-2022 and 13-12-2022, the Presiding Officer was on leave. A request was made to fix the next date as 13-01-2023, but the clerk inadvertently listed it as 05-01-2023. Due to this confusion, the complainant and counsel remained absent on both 05-01-2023 and 07-01-2023.
The accused was served but did not appear. Consequently, the Court issued notice on 15-03-2023, returnable on 23-03-2023. Despite being served, the accused did not appear on subsequent dates including 31-10-2023, 28-11-2023, and 15-02-2024. Considering the matter pertained to the year 2023 and the accused chose not to appear, the Court decided to proceed further.
Analysis and Decision:
The Court examined the roznama placed on record and observed that on several occasions, the appellant as well as his counsel were present, and also on few occasions, they were absent. The Court noted that the complaint was dismissed for non-prosecution and the accused was acquitted under Section 256 CrPC, moreover, the appellant had given sufficient explanation so as to warrant interference in the order dated 07-01-2023.
The Court noted from the roznama that the matter had been referred to the Lok Adalat. The Court further observed that the appellant was present occasionally and absent on others, and that the Presiding Officer was occasionally on leave. Taking these circumstances into account, the Court opined that a more liberal approach should have been adopted, especially since the appellant and his counsel had made sincere and consistent efforts to attend the proceedings.
The Court emphasised that mere absence on a few dates was not sufficient to justify dismissal for non-prosecution and acquittal of the accused. Considering the attending circumstances on record, the Court found it just and proper to afford a reasonable opportunity to the appellant to pursue his cause on merits. Therefore, the Court found it appropriate to grant leave to prefer the appeal.
The Court observed that the Magistrate acquitted the accused under Section 256 CrPC, as both the appellant and his counsel were absent on the last two occasions. However, the Court noted that, considering the reasons mentioned by the appellant for his absence that he was under the impression that the Court clerk would give him the date for which he had requested was a sufficient explanation to interfere in the order of dismissal for non-prosecution.
The Court referred to Sk. Akbar Talab v. A.G. Pushpakaran, 2017 SCC OnLine Bom 8616, wherein it was held that the principles of natural justice were required to be followed by giving an opportunity to the complainant to prosecute the complaint on merits, as well as an opportunity to the accused to contest the complaint on merits. The Court noted that the principles of natural justice were the cardinal principle of law and the backbone of the judicial process, and that the opportunity of hearing and the right to present the case were statutory incorporations of natural justice by mandating procedural safeguards. Therefore, the Trial Court ought not to have taken a harsh and hyper-technical view by dismissing the complaint for want of prosecution, which accordingly violated procedural safeguards.
The Court, while allowing the appeal, quashed the order dated 07-01-2023 passed by the Additional Chief Judicial Magistrate, which had dismissed the complaint under Section 256 CrPC and acquitted the accused under Section 138 of the Negotiable Instruments Act.
Consequently, the Court restored the Summary Criminal Case to its original stage and remanded it to the Trial Court for fresh decision on merits. The Court further directed the parties to appear on 22-09-2025, and the appellant was instructed to proceed without seeking adjournments, except in exceptional circumstances. The Court, thus, disposed of the appeal, ensuring the matter would be decided afresh in accordance with law.
[Amit Sunarlal Shahu v. Hare Madhav Electronics, 2025 SCC OnLine Bom 3143, decided on 09-09-2025]
Advocates who appeared in this case:
For the Appellant: U. V. Chakravarty, Advocate h/f. A. M. Tirukh
Buy Code of Criminal Procedure, 1973 HERE
