[Cites 20, Cited by 0]
Himachal Pradesh High Court
Reserved On: 20.12.2025 vs Ravi Kumar on 1 January, 2026
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 175 of 2015
.
Reserved on: 20.12.2025
Date of Decision: 1.1.2026.
M/s Mehak Fire Protection ...Appellant
of
Versus
Ravi Kumar ...Respondent
Coram
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Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Appellant : Mr Ashok Kumar Tyagi, Advocate.
For the Respondent : Mr Karan Singh Kanwar, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the order dated
19.9.2014, passed by learned Judicial Magistrate First Class,
Nahan, District Sirmour, H.P. (learned Trial Court), vide which
the complaint filed by the appellant (complainant before learned
Trial Court) for the commission of an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was
dismissed for non-prosecution. (Parties shall hereinafter be
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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
appeal are that the complainant filed a complaint before the
learned Trial Court against the accused for the commission of an
offence punishable under Section 138 of the NI Act. The
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complaint was listed for reconciliation before the Lok Adalat on
21.6.2014. The complainant received ₹24,000/- from the
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accused, and the matter was listed for further payment on
20.8.2014. The accused was not present on 20.8.2014, and the
matter was listed for the presence of the accused and the
payment on 19.9.2014. None appeared on behalf of the parties on
19.9.2014, and the learned Trial Court dismissed the complaint
for non-appearance.
3. Being aggrieved by the order passed by the learned
Trial Court, the complainant filed the present appeal, asserting
that the complainant's absence before the Court was not
intentional. His counsel had informed him that he was not
required to be present before the Court, and an application for
seeking exemption from personal appearance would be filed.
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The learned counsel failed to file the application, and the
learned Trial Court dismissed the application. The matter was
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listed for the payment and the presence of the accused. The
presence of the complainant was not necessary. Therefore, it
was prayed that the present appeal be allowed and the order
passed by the learned Trial Court be set aside.
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4. I have heard Mr Ashok Kumar Tyagi, learned counsel
for the appellant/complainant and Mr Karan Singh Kanwar,
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learned counsel for the respondent/accused.
5. Mr Ashok Kumar Tyagi, learned counsel for the
appellant/complainant, submitted that the learned Trial Court
erred in dismissing the complaint for non-prosecution. The
presence of the complainant was not necessary, and he was
assured by his learned counsel that an application for his
exemption would be filed; however, the learned counsel failed to
file the application, and the matter was dismissed for non-
prosecution. Hence, he prayed that the present appeal be
allowed and the order passed by the learned trial Court be set
aside.
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6. Mr Karan Singh Kanwar, learned counsel for the
respondent/accused, submitted that the complainant was
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absent on the date of the hearing and the learned Trial Court had
no other option but to dismiss the complaint for non-
prosecution. This was a reasonable view which could have been
taken by the learned Trial Court, and this Court should not
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interfere with the reasonable view of the learned Trial Court,
even if another view is possible. Hence, he prayed that the
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present appeal be dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The present appeal has been filed against a judgment
of acquittal. It was laid down by the Hon'ble Supreme Court in
Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:
(2025) 5 SCC 433 that the Court can interfere with a judgment of
acquittal if it is patently perverse, is based on
misreading/omission to consider the material evidence and
reached at a conclusion which no reasonable person could have
reached. It was observed at page 440:
"12. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal
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recorded by the learned trial judge would be warranted
by the High Court only if the judgment of acquittal
suffers from patent perversity; that the same is based on
a misreading/omission to consider material evidence on
.
record; and that no two reasonable views are possible
and only the view consistent with the guilt of the accused
is possible from the evidence available on record."
9. This position was reiterated in P. Somaraju v. State of
A.P., 2025 SCC OnLine SC 2291, wherein it was observed:
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" 12. To summarise, an Appellate Court undoubtedly has
full power to review and reappreciate evidence in an
appeal against acquittal under Sections 378 and 386 of the
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Criminal Procedure Code, 1973. However, due to the
reinforced or 'double' presumption of innocence after
acquittal, interference must be limited. If two reasonable
views are possible on the basis of the record, the acquittal
should not be disturbed. Judicial intervention is only
warranted where the Trial Court's view is perverse, based
on misreading or ignoring material evidence, or results in
a manifest miscarriage of justice. Moreover, the Appellate
Court must address the reasons given by the Trial Court
for acquittal before reversing it and assigning its own. A
catena of the recent judgments of this Court has more
firmly entrenched this position, including, inter alia,
Mallappa v. State of Karnataka 2024 INSC 104, Ballu @
Balram @ Balmukund v. The State of Madhya Pradesh 2024
INSC 258, Babu Sahebagouda Rudragoudar v. State of
Karnataka 2024 INSC 320, and Constable 907 Surendra
Singh v. State of Uttarakhand 2025 INSC 114."
10. The present appeal has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
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11. The record shows that the matter was listed for the
presence of the accused and the payment. Therefore, the
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presence of the complainant was not necessary.
12. Section 262(1) of Cr.P.C. provides that in a trial
under chapter XXI (summary trials), the procedure specified
of
in the Code for the trial of a summons case shall be followed
except as hereinafter mentioned. Section 263 of Cr.P.C.
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provides for the record in the summary trial. The learned Trial
Court did not maintain the record provided under Section 263
of Cr.P.C. in the form prescribed by the State Government.
Therefore, the learned Trial Court was following the
procedure for summons cases.
13. Section 251 of the Cr.P.C. provides that when the
accused appears or is brought before the Magistrate in a
summons case, the particulars of the offence of which he is
accused shall be stated to him, and he shall be asked whether
he pleads guilty or has any defence to make. Section 252 of
Cr.P.C. provides that if the accused pleads guilty, the
Magistrate shall record his plea and may, in his discretion,
convict him. Section 254 of Cr.P.C. provides that if the
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Magistrate does not convict him, the Magistrate shall hear the
prosecution and take all such evidence as may be produced in
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support of the prosecution.
14. Thus, the Magistrate has to ask the accused in a
summons case whether he pleads guilty or has any defence to
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make. The question of leading the evidence by the
complainant will arise only after the accused has pleaded not
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guilty and not before that. In the present case, the learned
Magistrate had not put the notice of the accusation to the
accused and had listed the matter for payment. Hence, the
complainant's presence was not required.
15. Section 256 of Cr.P.C. reads as under: -
"256. Non-appearance or death of the 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:
Provided that where the complainant is represented by a
pleader or by the officer conducting the prosecution, or
where the 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.
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(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."
.
16. The ingredients of Section 256 of Cr.P.C. were noted
by the Hon'ble Supreme Court in S. Rama Krishna v. S. Rami
Reddy, (2008) 5 SCC 535: (2008) 2 SCC (Cri) 645: 2008 SCC OnLine
SC 733 as under:
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"9. The ingredients of Section 256(1) are : (i) that
summons must have been issued on a complaint; (ii) the
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Magistrate should be of the opinion that for some reason,
it is not proper to adjourn the hearing of the case to some
other date; and (iii) the date on which the order under
Section 256(1) can be passed is the day appointed for
appearance of the accused or any day subsequent thereto,
to which the hearing of the case has been adjourned.
17. Thus, the Magistrate should be satisfied before
dismissing the complaint that it is not proper to adjourn the
hearing of the case. It was held in S. Anand v. Vasumathi
Chandrasekar, (2008) 4 SCC 67: (2008) 2 SCC (Cri) 178: 2008 SCC
OnLine SC 285, that where the presence of the complainant was
not required, the complaint should not have been dismissed. It
was observed: -
"12. Section 256 of the Code provides for the disposal of a
complaint in default. It entails acquittal. But, the question
which arises for consideration is as to whether the said
provision could have been resorted to in the facts of the
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case, as the witnesses on behalf of the complainant have
already been examined.
13. The date was fixed for examining the defence
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witnesses. The appellant could have examined witnesses
if he wanted to do the same. In that case, the appearance
of the complainant was not necessary. It was for her to
cross-examine the witnesses examined on behalf of the
defence.
14. The accused was entitled to file an application under
Section 311 of the Code of Criminal Procedure. Such an
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application was required to be considered and disposed of
by the learned Magistrate. We have noticed hereinbefore
that the complainant did not examine herself as a
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witness. She was sought to be summoned again for cross-
examination. The said prayer has not yet been allowed.
But that would not mean that on that ground the court
would exercise its discretionary jurisdiction under
Section 256 of the Code of Criminal Procedure at that
stage, or the defence would not examine his witnesses.
15. The presence of the complainant or her lawyer would
have been necessary, as indicated hereinbefore, only for
the purpose of cross-examination of the witnesses
examined on behalf of the defence. If she did not intend to
do so, she would do so at her peril, but it cannot be said
that her presence was necessary. Furthermore, when the
prosecution has closed its case, and the accused has been
examined under Section 311 of the Code of Criminal
Procedure, the court is required to pass judgment on the
merits of the matter.
18. It was held in BLS Infrastructure Ltd. v. Rajwant Singh,
(2023) 4 SCC 326: 2023 SCC OnLine SC 200, that where the
Magistrate is satisfied that the personal attendance of the
complainant is not necessary, he can dispense with the
attendance of the complainant and proceed with the case.
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12. A plain reading of the proviso to sub-section (1) of
Section 256 would indicate that where the Magistrate is
satisfied that the personal attendance of the complainant
is not necessary, he can dispense with the attendance of
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the complainant and proceed with the case. Such a
situation may arise where the
complainant's/prosecution's evidence has been recorded,
and to decide the case on merits, the complainant's
presence is not necessary.
13. In S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67:
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(2008) 2 SCC (Cri) 178, addressing a situation where the
complainant was absent but had already examined his
witnesses, this Court observed as follows: (SCC p. 69,
paras 12-13)
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"12. Section 256 of the Code provides for the disposal
of a complaint in default. It entails acquittal. But the
question which arises for consideration is as to
whether the said provision could have been resorted
to in the facts of the case, as the witnesses on behalf
of the complainant have already been examined.
13. The date was fixed for examining the defence
witnesses. The appellant could have examined
witnesses if he wanted to do the same. In that case,
the appearance of the complainant was not necessary.
It was for her to cross-examine the witnesses
examined on behalf of the defence."
After observing as above, in para 15, it was held thus: (S.
Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67: (2008)
2 SCC (Cri) 178], SCC p. 70)
"15. ... when the prosecution has closed its case, and
the accused has been examined under Section 311 of
the Code of Criminal Procedure, the Court was
required to pass a judgment on the merit of the
matter."
14. In Associated Cement Co. Ltd. v. Keshvanand, (1998) 1
SCC 687: 1998 SCC (Cri) 475, the purpose of inserting a
provision like Section 256 of the Code was discussed, and
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in light thereof, in para 16, it was observed as under: (SCC
p. 693)
"16. What was the purpose of including a provision
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like Section 247 in the old Code (or Section 256 in
the new Code)? It affords some deterrence against
dilatory tactics on the part of a complainant who
sets the law in motion through his complaint. An
accused who is forced to attend the court on all
posting days can be put to much harassment by a
complainant if he does not turn up to the court on
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occasions when his presence is necessary. The
section, therefore, affords protection to an accused
against such tactics of the complainant. But that
does not mean if the complainant is absent, the
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court has a duty to acquit the accused in invitum."
After observing as above, it was held that where the
complainant had already been examined as a witness in
the case, it would not be appropriate for the Court to pass
an order of acquittal merely on the non-appearance of the
complainant. Thus, the order of acquittal was set aside,
and it was directed that the prosecution would proceed
from the stage where it reached before the order of
acquittal was passed.
15. 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 witnesses. In Para 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 to be no 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 position. Both the courts below
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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."
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19. In the present case, the complainant had no role
before the Court had put the notice of accusation to the
accused or decided to proceed with the matter in a summary
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way. Hence, the presence of the complainant was not
necessary on 19.9.2014, and the complaint could not have
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been dismissed in default as per the binding precedents of this
Court.
20. Thus, the learned Trial Court erred in dismissing the
complaint for non-prosecution. The learned Trial Court could
not have proceeded with the matter in the absence of the
accused. Hence, the presence of the complainant was not
necessary, and the order passed by the learned Trial Court is
contrary to the settled position of law.
21. In view of the above, the present appeal is allowed,
and the order passed by the learned Trial Court is ordered to be
set aside. The complaint is restored to its original position. The
learned Magistrate is directed to proceed further with the matter
as per the law.
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22. The parties, through their respective counsel, are
directed to appear before the learned Trial Court on 18 th
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February, 2026.
23. A copy of the order and record of the learned Trial
Court be transmitted to it to proceed further with the case.
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24. The appeal stands disposed of, so also the pending
application(s), if any.
rt (Rakesh Kainthla)
Judge
1st January, 2026
(Chander)
