[Cites 10, Cited by 0]
Orissa High Court
Priyadarsani Nayak vs State Of Odisha & Ors. ..... Opp. Parties on 16 December, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4683 of 2025
Priyadarsani Nayak ..... Petitioner
Represented by Adv. -
Himanshu Bhusan
Dash
-versus-
State of Odisha & Ors. ..... Opp. Parties
Represented by Adv. -
B.K. Sahu, A.G.A for
the State-O.P. No.1
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
16.12.2025
Order No.
03. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner as well as learned
counsel for the State-Opp. Party No.1. Since no notice has been
issued, none appears on behalf of the accused-Opposite Party Nos.2
and 3. Perused the application as well as the prayer made therein.
3. By filing the present application under Section 528 of the
BNSS, the Petitioner seeks to challenge order dated 07.02.2025
passed by the learned JMFC-III (Cog. Taking) Court, Cuttack in
1.C.C Case No.193 of 2020. The abovenoted 1.C.C case was filed
at the instance of the present Petitioner as complainant therein
alleging commission of an offence punishable under Section 138 of
NI Act.
4. Learned counsel for the Petitioner at the outset contended
that the complainant alleging commission of an offence under
Section 138 of NI Act approached the learned SDJM (Sadar),
Cuttack by filing 1.C.C No.193 of 2020 against the Opposite Party
Nos.2 and 3. He further submitted that after recording of the
statement of the complainant under Section 200 of the Cr.P.C, the
learned Magistrate proceeded to issue summons to the accused-
Opposite Party Nos.2 and 3. While this was the position, Covid-19
pandemic intervened. He further submitted that although the matter
was listed on several occasions, however, the summons could not
be served on the accused-Opposite Party Nos.2 and 3. Finally, the
matter was posted for consideration of the tracking report with
regard to the service of summons on the Opposite Party Nos.2 and
3. On 07.02.2025, the matter was listed specifically for hearing on
the tracking report. However, the complainant was absent and no
steps were taken on his behalf. Since the complainant was found
absent on 07.02.2025 and no steps were taken in that regard, the
learned trial court taking into consideration the fact that the case is
of the year 2020 dismissed the complaint. Being aggrieved by such
order, the Petitioner has approached this Court by filing the present
application.
5. In course of his argument, learned counsel for the Petitioner
referred to the judgment of the Hon'ble Supreme Court in Ranjit
Sarkar vs. Ravi Ganesh Bhardwaj & Ors. decided in SLP (Crl.)
No.205 of 2025 vide its judgment dated 17.03.2025. On perusal of
the said judgment, it appears that somewhat of an identical question
was taken up by the Hon'ble Supreme Court for adjudication.
Learned counsel for the Petitioner referring to paragraph-18, 19 and
20 of the judgment, stated before this Court that since the accused
was posted for hearing of the tracking report, the learned court
below could not have exercised the power under Section 256 of the
Cr.P.C and the complaint petition could not have been dismissed.
He further submitted that in the abovenoted judgment of the
Hon'ble Supreme Court, the Hon'ble Supreme Court, after a
thorough discussion of the factual background of the case, was
pleased to hold that the impugned order dated 15.07.2024 passed in
CRR No.359 of 2023 is unsustainable in law and, as such, the same
was set aside. As a consequence thereof, the complaint case No.2 of
2017 was revised on the file of the Judicial Magistrate. Relying
heavily upon the judgment of the aforesaid Hon'ble Supreme
Court, learned counsel for the Petitioner contended that the ratio
laid down in the aforesaid judgment squarely applies to the facts of
the present case. Hence, the impugned order dated 07.02.2025 be
set aside and the complaint case be restored to its original file and
number.
6. So far the dismissal of the complaint petitions are concerned,
this Court analyses the provisions contained in the Code of
Criminal Procedure, 1973. Under Section 203 of the Cr.P.C, a
complaint can be dismissed after considering the statement of the
complainant and of the witnesses and subject to the result of the
inquiry or investigation conducted under Section 202 of the Cr.P.C,
i.e., in the event the Magistrate is of the opinion that there is no
sufficient ground for proceeding against the accused persons, he
shall dismiss the complaint at the threshold after recording the
statement of the complainant and other witnesses at the initial
stage. In the present case, after recording of the statement of the
complainant and other witnesses, the learned Magistrate had
proceeded further and decided to issue process to the accused-
Opposite Party Nos.2 and 3. When the matter was posted for
consideration of the sufficiency of service of summons and for
consideration of the tracking report, the matter was dismissed for
default vide the impugned order dated 07.02.2025. Thus, this Court
is of the view that the provisions contained in Section 203 of the
Cr.P.C would not be applicable to the facts of the present case.
7. On perusal of the digitized copy of the LCR, the order sheet
reveals that the learned SDJM(S), Cuttack has taken cognizance of
the offence in 1.C.C No.193 of 2020 vide order dated 26.08.2021
out of which the present application arises. The order dated
26.08.2021 reveals that after condoning the delay under Section 5
of the Limitation Act read with Section 142(b) of NI Act, the
learned Magistrate accepted the complaint and the cognizance of
the offence has been taken under Section 138 of NI Act. Moreover,
by virtue of the order passed on the later part of the day, the learned
Magistrate has decided to issue processes against the accused
persons and the case was posted to 22.12.2021 for appearance of
the accused persons and the complainant was directed to file
requisites for issuance of such processes. Thereafter, the case was
adjourned on several occasions on the prayer of learned counsel for
the complainant for taking steps for filing requisite for issuance of
the process.
8. On perusal of the order sheet available in the TCR it is
revealed that the matter was being adjourned from 22.12.2021, for
consideration of the tracking report, up to 13.03.2023. After
13.03.2023, the case was not listed till 24.01.2025. On 24.01.2025,
the case record was put up for casual inspection of the record and it
has been noted that on perusal of the case record it was found that
the case record has been received on transfer from the court of
learned SDJM (S), Cuttack by the court of learned JMFC-III,
Cuttack. Accordingly, the order was passed for hearing on the
tracking report on 07.02.2025. The order dated 24.01.2025 does not
reveal as to whether any notice was given to the complainant or the
accused persons. Although the case was listed last on 13.03.2023
and the same was taken up for casual inspection on 24.01.2025, the
same was finally posted for hearing on tracking report on
07.02.2025.
9. The order sheet dated 07.02.2025, which is the impugned
order in the present application reveals that the case record was put
up on that day for hearing on the tracking report. It is not disputed
that the complainant-petitioner was absent on that date and no steps
were taken on behalf of the complainant-petitioner. The learned
Magistrate has recorded that case has been lingering at the stage of
filing of original document after initial statement of the
complainant was recorded. It further reveals that despite several
adjournments, the complainant did not present himself before the
court. The learned Magistrate has also taken note of the fact that the
case at hand involves a dispute under Section 138 of NI Act and the
same should have been concluded within six months from the date
of filing of the complaint as mandated by law. Moreover, since the
case is of the year 2020 and the same has been lingering for several
years due to default on the part of the complainant, the learned Trial
Court has drawn a conclusion that the complainant lacks interest in
the case and, accordingly, a complaint case was dismissed due to
default on the part of the complainant. Being aggrieved by such
order, the Petitioner has approached this Court by filing the present
application.
10. On a careful analysis of the trial court record as well as the
entire order sheet, particularly the order dated 07.02.2025 by which
the complaint case has been dismissed due to non-prosecution and
on perusal of the order sheet, this Court observes that after issuance
of the process, the case was being listed regularly up to 13.03.2023.
Thereafter, the same was not listed till 24.01.2025. On 24.01.2025,
a casual inspection took place and it was detected that the case is
pending since 2020. It also appears that in the meantime the case
record has also been transferred from the court of learned SDJM
(S), Cuttack to the court of learned JMFC-III, Cuttack. The order
sheet does not reveal as to whether the complainant was put on
notice regarding such transfer of case record from one court to
other. While this was the position, the learned Magistrate vide order
dated 07.02.2025 has been pleased to dismiss the complaint for
default.
11. On a careful analysis of the provisions contained in Cr.P.C
with regard to dismissal of the complaint, this Court found that
there exist two specific provisions for dismissal of the complaint.
Firstly, under Section 203 of the Cr.P.C, at the very threshold, after
recording the statement of the complainant and the witnesses on
oath and upon consideration of the result of the inquiry or
investigation under Section 202 of the Cr.P.C, the Magistrate may,
after recording reasons in writing therein, decide to dismiss the
complaint if he is of the opinion that there is no sufficient ground
for proceeding. Secondly, under Chapter XX of the Cr.P.C,
specifically under Section 255 and 256 of the Cr.P.C. Under section
255 of the Cr.P.C, the magistrate, after taking the evidence under
section 254, i.e. during the hearing of the Prosecution and the
Accused, may record an order of acquittal if he finds the accused
not guilty of the charges. Similarly, under Section 256 of the
Cr.P.C, the learned Magistrate is empowered to acquit the accused
in a scenario where the complainant has died or he does not appear
before the court on the date fixed for hearing, unless, for some
reason, he thinks it proper to adjourn the hearing of the case to
some other day. The power under Section 256 of the Cr.P.C can
only be exercised when summons have been issued to the
complainant and the case has been posted for appearance of the
accused or on any subsequent date thereto to which the hearing
may be adjourned. Therefore, on a careful analysis of the
provisions, this Court is of the view that the exercise of the power
in the present case by passing order dated 07.02.2025 does not
come fall within the confines of Section 203, 255 or even 256 of
the Cr.P.C. in the matter at hand, the stage of exercising the power
under Section 203 of the Cr.P.C was already over and the learned
Magistrate was not competent to pass an order of acquittal under
Section 256 of the Cr.P.C as the case was not posted for appearance
of the accused. Rather, the same was posted for hearing on the
tracking report which is evident from the impugned order dated
07.02.2025.
12. At this stage, this Court would like to refer to the judgment
of the Hon'ble Supreme Court in Ranjit Sarkar's case (supra)
wherein a somewhat identical scenario was in issue before the
Hon'ble Supreme Court. It would be relevant to quote para-19 and
20 of the judgment at this stage:-
"19. What, therefore, assumes importance for
invoking Section 256, Cr.P.C is the purpose for which the
case is fixed. If the date is not appointed for appearance of
the accused but for some other purpose, like in the present
case, acquittal of the accused does not necessarily follow
as the logical result of absence of the complainant. Also,
the words "on any day subsequent thereto" must be
understood in reference to the words preceding, namely,
"the day appointed for the appearance of the accused".
Say, for instance, if a date is fixed by the magistrate for
bringing an order from a superior court or for showing
cause why an order of dismissal should not be passed for
continuous absence of the complainant or for producing
any material, which is not intrinsically connected with any
step towards progress of the lis, and the complainant is
found to be absent, a dismissal of the complaint can be
ordered but the provision for acquitting the accused may
not be attracted unless it happens to be the date appointed
for appearance of the accused and they do appear
personally or through an advocate; also, without the
magistrate recording a clear acquittal along with the order
of dismissal of the complaint, acquittal need not be read
into every such order of dismissal of a complaint owing to
absence of the complainant.
20. From the tenor of the order dated 6th January,
2021, it is clear that 16th April, 2021 was not the day
appointed for appearance of the respondents. It was the
date on which the appellant was required to show cause.
Had COVID restrictions not been in place and in
otherwise normal circumstances, if the appellant remained
absent on the date appointed for appearance of the
respondents, without showing sufficient cause, the Judicial
Magistrate in terms of Section 256, Cr.P.C would have
been justified in recording an order of acquittal of the
respondents had they been present unless, for some reason,
he intended to adjourn the hearing to some other day.
However, the jurisdictional facts for recording an acquittal
under Section 256, Cr.P.C were not satisfied in the present
case, firstly, because it was not the appointed day for
appearance of the respondents and secondly, they were
also not present. Owing to the absence of the appellant
and owing to his omission to respond to the show-cause,
the Judicial Magistrate could, at best, be justified in
dismissing the complaint for default, which he did but
which he could not have done having regard to the facts of
the notification dated 27th November, 2020 being in force
on 16th April, 2021 and operation of the stay order
granted by the High Court on 18th September, 2018, since
extended from time to time."
13. On a careful analysis of the factual background of the
present, this Court found that the factual background of the present
case is somewhat identical to the fact involved in Ranjit Sarkar's
case (supra). Moreover, this Court observes that although the
matter was being routinely adjourned till 13.03.2023, the same was
not listed for more than one and half years. Finally, on 24.01.2025,
the case record was put up for casual inspection and without
noticing the parties, the case was posted to 07.02.2025, on which
date the complaint petition was dismissed due to default on the part
of the complainant. On a careful analysis of the entire case record
as well as the order sheet of the learned trial court, this Court is of
the considered view that the learned trial court has not followed the
right procedure while dismissing the complaint. As such, this Court
has no hesitation in coming to a conclusion that order dated
07.02.2025 is unsustainable in law. Moreover, since the said order
was passed without noticing the accused persons, they could not
appear before the learned trial court pursuant to the process issued
by the learned Magistrate. Thus, this Court has a reason to believe
that the accused-Opposite Parties are in no way prejudiced by the
outcome of the present application.
14. In view of the aforesaid analysis of the legal position, further
applying the ratio laid down by the Hon'ble Supreme Court in
Ranjit Sarkar's case (supra), this Court inevitably arrives at a
conclusion that the order dated 07.02.2025 is unsustainable in law.
Therefore, in exercise the inherent powers saved under Section 482
of the Cr.P.C, this Court deems it proper to set aside the impugned
order dated 07.02.2025. Furthermore, the learned Magistrate is
directed to restore the complaint case to its file with its original
number and necessary steps be taken for issuance of processes to
the accused persons. It is needless to mention here that the further
proceeding in the revived complaint case shall continue in
accordance with the established procedure laid down in the Cr.P.C.
Moreover, taking into consideration the fact the complaint case is
of the year 2020, the learned trial court shall make every endeavour
to ensure that the trial is concluded as expeditiously as possible.
The complainant is directed to fully cooperate with the learned trial
court throughout the trial.
15. With the aforesaid observations/ directions, the CRLMC is
disposed of.
( Aditya Kumar Mohapatra)
Judge
Anil
Designation: Junior Stenographer
Location: High Court of Orissa
Date: 17-Dec-2025 19:02:39
