[Cites 8, Cited by 0]

Himachal Pradesh High Court

Date Of Decision:25.02.2026 vs M/S Reliable Hospitalities on 25 February, 2026

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                      1.2026:HHC:4311




            IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                             Cr. Revision No.637 of 2025




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                                                             Date of Decision:25.02.2026





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    M/s Rajat Resorts,The Mall Shimla                                          .....Petitioner

                                                 Versus





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     M/s Reliable Hospitalities                                               .....Respondent
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    Coram:
    The Hon'ble Mr. Justice Sandeep Sharma, Judge.




                                                 of
    Whether approved for reporting? 1
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    For the Petitioner:                    Mr. Shakti Bhardwaj, Advocate.
    For the Respondent:rt                    Mr.Jagmohan Singh Chandel, Advocate.
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    Sandeep Sharma, J. (Oral)

Being aggrieved and dissatisfied with order dated

07.07.2025 passed by learned Judicial Magistrate, First Class, Court

No.3, Shimla, District Shimla, H.P, whereby the learned Court below

while closing the evidence of the petitioner/complainant has further

proceeded to dismiss the complainant for want of prosecution,

petitioner/complainant has approached this Court in the instant

proceedings filed under Section 442 of the Bhartiya Nagrik Suraksha

Sanhita, 2023, praying therein to set aside the aforesaid order and

restore the complaint No.280-B of 2020 titled M/s Rajat Resorts vs M/s

Reliable Hospitalities.

2. Precisely, the grouse of the petitioner as highlighted in the

petition and further canvassed by Sh. Shakti Bhardwaj, learned Counsel

for the petitioner/complainant is that on account of unavoidable

circumstances, petitioner/complainant was unable to produce his

Whether reporters of the local papers may be allowed to see the judgment?

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evidence on the given date and in that regard, plausible explanation was

rendered on record but yet learned Court below proceeded to dismiss

the complaint. Mr.Shakti Bhardwaj, learned Counsel for the

petitioner/complainant submitted that learned Court below taking note of

previous adjournments, if any, taken by the petitioner/complainant, could

have closed the evidence of the petitioner/complainant but in no

of circumstance, could have dismissed the complaint, which otherwise was

required to be decided on the basis of other material i.e. pleadings as

well as documentary evidence available on record.

3. To the contrary, Mr. Jagmohan Singh Chandel, learned

counsel for the respondent/accused, vehemently argued that there is no

illegality in order dated 07.07.2025 because bare perusal of the same

reveals that petitioner had been taking time to lead evidence for last so

many dates. He submitted that since despite sufficient opportunities,

petitioner failed to lead evidence, learned Court below had no option

but to pass impugned order. Learned Counsel for the respondent

submitted that since petitioner/complainant failed to lead evidence in

support of his complaint, no illegality can be said to have been

committed by the learned Court below while dismissing the complaint,

contents whereof, otherwise only could have been proved by leading

evidence, which petitioner had failed to do.

4. Though, having heard learned counsel for the parties and

perused material on record, this Court finds that since year 2022,

petitioner/complainant had been taking time to produce evidence, but

on one pretext or other, he failed to lead evidence. On 28.11.2024,

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learned Court below, while imposing cost of Rs.1500/-granted further

time to produce CWs on 07.07.2025,but unfortunately even on that

date, no evidence was produced and such learned Court below

proceeded to pass impugned order.

5. Question which needs to be determined in the case at

hand is that "whether Court below after closing the evidence of

of complainant, could have dismissed the complaint or not."

6. Though, this Court is of the view that once learned Court

below had closed the evidence of the petitioner it ought to have decided rt the complaint on its merits and certainly it could not have dismissed

complaint.

7. In terms of Section 143 of the 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 during the trial initiated on filing a 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.

8. At this stage, it would be apt to take note of Section 256

Cr.P.C, which reads as under:-

"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 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:

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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 sub-section (1) shall, so far as may be, apply also to cases where the non-appearance

of the complainant is due to his death."

9. Bare reading of aforesaid provision of law provides

of discretion to the Magistrate either to acquit the accused or to adjourn the

case for some other day, if he thinks it proper. Proviso to aforesaid

section further empowers the Magistrate to dispense with the rt complainant from his personal attendance, if it is found not necessary

and to proceed with the case. If the complainant is represented by a

pleader or by the officer conducting the prosecution, the Magistrate may

proceed with the case in absence of the complainant. When the

Magistrate, in a summons case, dismisses the complaint and acquits the

accused due to absence of the complainant on the date of hearing, it

becomes final and it cannot be restored in view of Section 362 Cr.P.C.

At this stage, it would be profitable to reproduce Section 362 Cr.P.C.,

herein below:-

362. Court not to alter judgment. -Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

10. Having taken note of effect of dismissal of complaint under

Section 138 of the Act, Hon'ble Apex Court in case titled Associated

Cement Co. Ltd. v. Keshvanand, reported in (1998) 1 SCC 687,

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elaborately dealt with the scope of Section 256 Cr.P.C, and held that

though, afore Section affords protection to an accused against dilatory

tactics on the part of the complainant, but, at the same time, it does not

mean that if the complainant is absent, the Court can straightway

proceed to acquit the accused in invitum. It has been specifically held in

the afore judgment that power under Section 256 Cr.P.C must be

of exercised judicially and fairly without impairing the cause of

administration of criminal justice.

11. Similarly in case titled Mohd. Azeem v. A. Venkatesh, rt reported in (2002) 7 SCC 726, Hon'ble Apex Court held that dismissal

of the complaint on account of one singular default in appearance on the

part of the complainant, if permitted would result in failure of justice.

12. In case titled S.Anand v. Vasumathi Chandrasekar,

reported in (2008) 4 SCC 67, Hon'ble Apex Court also deprecated

practice of trial Court in dismissing the complaint on account of default

in appearance. In the afore case complaint under Section 138 of the Act

was dismissed by the trial Court exercising the power under Section 256

Cr.P.C on failure of the complainant or her power of attorney or the

lawyer appointed by her to appear in Court on the date of hearing fixed

for examination of witnesses on behalf of the defence. Hon'ble Apex

Court after having considered the provisions of Section 256 Cr.P.C,

observed that Court instead of disposal of a complaint in default, could

have proceeded to decide the matter on merits on the basis of evidence

already adduced on record by the complainant and the statement of

accused recorded under Section 313 Cr.P.C.

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13. In yet another case titled N.K. Sharma's case vs. M/S

Accord Plantations Private Limited and another, reported in 2008(2)

Latest HLJ 1249, Co-ordinate Bench of this Court relying upon

Associated Cement Co. Ltd.'s case (supra), categorically held that

when the Court notices that complainant is absent on a particular day, it

must consider that whether the personal attendance of the complainant

of is essential on that day for the progress of the case and also whether the

situation does not justify the case being adjourned to another date due

to any other reason and if the situation does not justify the case being rt adjourned, then only Court is free to dismiss the complaint and acquit

the accused, but if the presence of complainant on that day was quite

unnecessary then resorting to the step of axing down the complaint, may

not be a proper exercise of power envisaged under Section 256 Cr.P.C.

14. Reliance is placed upon the judgment dated 01.03.2023

passed by Hon'ble Apex Court in M/s BLS Infrastructure Limited

versus M/s Rajwanti Singh and others in Criminal Appeal Nos. 657-

664 of 2023, where in similar facts and circumstances, Hon'ble Apex

Court held that the action of learned Magistrate not justified in straight

away dismissing the complaint(s) and ordering acquittal of the accused

on mere non appearance of the complainant. Relevant paras No.13 and

14 of afore judgment are as under:-

"13. In the instant case, we notice that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further

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witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant's cross-

.

examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather,

CW-1's cross-examination in the above three complaint cases was adopted. There appears no

of specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid rt position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to

sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. Further, if the

complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311

of the Code and proceeded with the case on basis of

the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s)

and ordering acquittal of the accused on mere nonappearance of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside.

14. For the reasons above, the order(s) of the High Court as well as of the learned Magistrate are set- aside. The proceedings shall stand restored to their original number(s) on the file of the learned Magistrate and the prosecution shall now proceed from the stage

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where it was when the order of acquittal/dismissal of the complaint(s) was passed."

15. Factum of payment, if any, made by the respondent-

accused to the complainant, which has been otherwise seriously

disputed by learned counsel for the petitioner-complainant, cannot be

gone into the instant proceedings, rather same can be ascertained in

the main proceedings filed under Section 138 of the Negotiable

of Instruments Act.

16. Consequently, in view of the detailed discussion made rt hereinabove as well as law taken into consideration, the present petition

is allowed, order dated 07.07.2025 is quashed and set aside and

complaint No.280-B of 2020 , titled M/s Rajat Resort vs M/s Reliable

Hospitalities is ordered to be restored, with a direction to learned Court

below to proceed with the trial from the stage, it was dismissed.

17. Since this Court is convinced that petitioner has been