Liberal, Natural-Justice–Centric Standard for Setting Aside Section 256 CrPC Acquittals in Cheque-Dishonour Cases: Bombay High Court Restores Complaint with Costs

Case: Amit Sunarlal Shahu v. Hare Madhav Electronics through Proprietor Vijay Motilal Pinjwani
Court: Bombay High Court, Nagpur Bench
Bench: M.M. Nerlikar, J.
Decision Date: 09 September 2025
Citation: 2025:BHC-NAG:8844
Proceedings: Criminal Application (APPA) No. 322 of 2023 in Criminal Appeal (Stamp) No. 2237 of 2023

Introduction

This judgment addresses a recurrent procedural issue in cheque-dishonour prosecutions under Section 138 of the Negotiable Instruments Act, 1881 (NI Act): when is it proper for a Magistrate to dismiss a complaint for “want of prosecution” and record an acquittal under Section 256 of the Code of Criminal Procedure, 1973 (CrPC)? The appellant-complainant, Amit Sunarlal Shahu, challenged an order of the Additional Chief Judicial Magistrate (ACJM), Akola, dismissing his complaint and acquitting the accused due to the complainant’s absence on the last two dates.

The High Court’s ruling reiterates that the power under Section 256 CrPC must be exercised with circumspection, guided by principles of natural justice. A few instances of non-appearance—particularly amidst demonstrable prior diligence, adjournments caused by court unavailability, and bona fide listing errors—should not, by themselves, culminate in an acquittal. The Court restores the complaint, imposes costs, and lays down a measured approach for trial courts handling such situations.

Summary of the Judgment

The High Court allowed the appeal, set aside the Magistrate’s order dated 07/01/2023 (dismissing the complaint under Section 256 CrPC and acquitting the accused in Summary Case No. 1989/2019), and restored the complaint to its original stage for decision on merits. The Court found the complainant’s explanation for absence—stemming from a bona fide mislisting and earlier roznama (daily order sheet) entries showing repeated attendance—sufficient to warrant interference. Emphasizing natural justice and a liberal approach in such matters, particularly under Section 138 NI Act, the Court directed the parties to appear before the trial court on 22/09/2025, cautioned against unnecessary adjournments, and imposed costs of Rs. 2,000 to be paid by the appellant to the respondent.

Factual and Procedural Background

The complainant alleged that the respondent, well acquainted with him, borrowed Rs. 2,50,000 on 07/12/2018 for business purposes with a promise to repay within a month. The respondent issued a cheque for Rs. 2,50,000, which was dishonoured upon presentation. A complaint under Section 138 NI Act was filed and registered as Summary Criminal Case No. 1989/2019 on 03/04/2019.

As per the roznama:

The matter was adjourned multiple times and was also referred to the Lok Adalat on 22/04/2022 to explore settlement.
On 21/07/2022, both complainant and counsel were present but the Presiding Officer was on leave.
Subsequent dates saw a mix of appearances and absences by the complainant/counsel, and on 23/11/2022 and 13/12/2022 the Presiding Officer was on leave.
On 05/01/2023 and again on 07/01/2023, the complainant and his counsel were absent. The Magistrate dismissed the complaint for want of prosecution and acquitted the accused under Section 256 CrPC.

The complainant explained that after 13/12/2022 (when the Presiding Officer was on leave), a request was made to the court clerk to post the matter on 13/01/2023; the case, however, was listed on 05/01/2023. Counsel remained under the bona fide impression that the next date was 13/01/2023, leading to absence on 05/01/2023 and 07/01/2023.

The respondent, though served with the High Court’s notice, did not appear despite several opportunities.

Issues

Whether the Magistrate’s dismissal of the complaint and consequent acquittal under Section 256 CrPC, in the given circumstances, was justified.
Whether the High Court should interfere, grant leave under Section 378(4) CrPC, and restore the complaint to be tried on merits.

Precedents Cited

The High Court relied on its earlier decision in Shri Shaikh Akbar Talab v. A.G. Pushpakaran & Another, 2018 ALL MR (Cri) 1208. The cited passage emphasizes that:

Where complaints were dismissed under Section 256 CrPC due to absence, principles of natural justice require that the complainant be afforded an opportunity to prosecute on merits and the accused be given an opportunity to contest on merits.
Consequently, such matters have been restored when the circumstances warrant it.

This precedent clearly influenced the Court’s approach: rather than treating absence mechanistically, the Court assessed the overall conduct, the roznama, and bona fide reasons, favouring restoration to uphold fairness.

Legal Reasoning

1) The nature and purpose of Section 256 CrPC

Section 256 CrPC allows a Magistrate to acquit the accused if the complainant does not appear on the appointed day. However, this power is not absolute; the provision also envisages adjournment for proper reasons and recognizes that personal attendance may not be necessary in every situation. The section is intended to prevent abuse and delay, not to penalize litigants for non-contumacious lapses.

2) Application to the facts: the roznama and bona fide absence

The Court carefully examined the roznama and found:

Repeated presence of the complainant and counsel on several dates.
Multiple dates where the Presiding Officer was unavailable, contributing to delay.
A credible explanation that the matter was mislisted (counsel had requested 13/01/2023, but it was listed on 05/01/2023), causing a bona fide absence on 05/01/2023 and 07/01/2023.

In these circumstances, the Court held that a liberal approach was warranted; a few lapses, set against substantial prior diligence and systemic adjournments, did not justify the harsh consequence of an acquittal under Section 256 CrPC.

3) Natural justice as “backbone of judicial process”

Reaffirming the principle articulated in Shaikh Akbar Talab, the Court reasoned that procedural safeguards and the opportunity to be heard are fundamental. Dismissing a complaint and acquitting the accused for want of prosecution—especially where the complainant’s absence is neither intentional nor contumacious—undermines these safeguards. The Court cautioned against a “harsh and hyper-technical” approach.

4) The NI Act context and affidavit evidence

Section 138 prosecutions often proceed on affidavit evidence (Section 145 NI Act), reducing the need for the complainant’s physical presence at every stage. The Court’s reasoning implicitly recognizes that, at the stage of filing the complainant’s affidavit of evidence, the presence of counsel or the feasibility of filing the affidavit ought to be considered before invoking Section 256. The Magistrate should assess whether personal attendance is indispensable on the given date and whether a short accommodation or costs could suffice.

5) Appellate route and relief

Because a Section 256 order results in an acquittal, the complainant’s remedy lies in appeal with leave under Section 378(4) CrPC. Here, the High Court granted leave and simultaneously allowed the connected appeal, quashing the acquittal. The complaint was restored to its original stage, the parties were directed to appear on 22/09/2025, adjournments were curtailed to exceptional circumstances, and costs of Rs. 2,000 were imposed on the appellant for restoration—balancing fairness with judicial discipline.

Impact and Significance

For trial courts

Before invoking Section 256 CrPC, courts should scrutinize the roznama, evaluate the complainant’s overall diligence, and consider whether personal attendance is essential for progress on the given date.
Courts should resort to milder measures—short adjournments with costs or proceeding in the absence of personal attendance where permissible—rather than precipitous acquittals based on isolated absences.
This approach is especially pertinent in Section 138 NI Act matters where affidavit evidence is the norm and systemic delays sometimes intrude.

For litigants and counsel

Good-faith lapses, such as bona fide mislisting, may be excused, but parties should maintain meticulous records of dates and ensure robust diary practices.
Even when restoration is allowed, costs and strict future timelines may follow—diligent prosecution thereafter is essential.

For appellate practice

The judgment exemplifies a pragmatic approach: granting leave under Section 378(4) and disposing of the appeal on merits in one go to prevent further delay.
It reassures that Section 256 acquittals are not immune from scrutiny where natural justice concerns arise.

Complex Concepts Simplified

Section 138 NI Act: Creates an offence for dishonour of cheque due to insufficiency of funds or exceeding arrangement, subject to statutory pre-conditions (notice, timelines). Evidence can be on affidavit.
Section 256 CrPC: If the complainant is absent on the appointed day, the Magistrate may acquit the accused, unless there is reason to adjourn or proceed without the complainant’s personal attendance. This is a discretionary power to be used judiciously.
“Dismissal for want of prosecution”: Terminating a case because the party initiating it does not pursue it diligently or is absent. In complaints, such dismissal under Section 256 results in an acquittal.
Roznama: The daily order sheet reflecting the court’s proceedings, presence/absence of parties, and adjournments—often central to evaluating diligence.
Lok Adalat: A forum for consensual settlement. Referral indicates attempts at resolving the dispute amicably.
Leave to appeal (Section 378(4) CrPC): When a case is instituted upon complaint and results in acquittal, the complainant requires the High Court’s leave to file an appeal.
Costs on restoration: Monetary sanction imposed to compensate the other side and to encourage discipline while granting indulgence.

Notable Observations and Clarifications

Date discrepancy: The narrative mentions “Subsequently on 07/01/2025” but the impugned order is elsewhere consistently described as dated 07/01/2023. This appears to be a typographical error, given the surrounding chronology.
“Presenting Officer” vs “Presiding Officer”: The roznama notes sometimes refer to “Presenting Officer” being on leave; context suggests this is intended to mean the “Presiding Officer,” i.e., the Magistrate.

Key Directions Issued

The Magistrate’s order dated 07/01/2023 dismissing the complaint under Section 256 CrPC and acquitting the accused is quashed.
Summary Case No. 1989/2019 is restored to its original stage for decision on merits.
Parties shall appear before the trial court on 22/09/2025.
Adjournments to be granted only in exceptional circumstances; the appellant must co-operate and avoid delays.
Restoration is subject to payment of costs of Rs. 2,000 by the appellant to the respondent.

Conclusion

This decision reinforces a clear standard: dismissals under Section 256 CrPC in cheque-dishonour prosecutions should not flow from a rigid or punitive reading of occasional absences. Courts must weigh the entire course of the proceedings, the conduct of parties, and systemic factors such as the unavailability of the Presiding Officer or bona fide listing errors. Natural justice—ensuring that both complainant and accused have a fair opportunity to litigate on merits—remains the bedrock of the criminal process.

By restoring the complaint with costs and imposing a strict schedule, the High Court balances fairness with efficiency. The ruling offers practical guidance to Magistrates and litigants alike: prefer merits over technicalities, but pair indulgence with accountability. This calibrated, liberal approach can help reduce miscarriages arising from procedural missteps while maintaining momentum in the high-volume landscape of Section 138 NI Act cases.