Complaint U/S 138 NI Act Cannot Be Dismissed For Complainant’s Absence When Accused Avoids Trial: High Court

The High Court held that an acquittal under Section 256 CrPC cannot be recorded where the accused has never appeared before the trial court, as the provision contemplates the presence of the accused and judicial consideration of the necessity of the complainant’s attendance.

Section 251 CrPC.

It was observed that where the accused never appeared, the proceedings never progressed to the stage of trial or evidence. In such circumstances, an acquittal cannot legally be recorded because there is neither a plea nor any evidence for adjudication.

The Bench noted that after cognisance, no evidence was recorded because the accused never appeared.

Thus, there was no material before the Magistrate that could support a finding of acquittal. Recording an acquittal without evidence or trial would contradict the statutory scheme governing criminal adjudication.

The Court distinguished precedents cited by the accused, observing that in all those cases the accused had appeared and was facing trial when complaints were dismissed. The present case, the Bench noted, was materially different because the accused had not appeared at all.

The Court also relied on Ranjeet Sarkar v. Ravi Ganesh Bhardwaj, which clarified that an acquittal under Section 256 CrPC must logically follow from the complainant’s absence and the purpose for which the date was fixed.

Applying these principles, the Court held: “In the present case, the non-appearance of the complainant on the date fixed would not lead to acquittal of the accused at any stretch of imagination, because the accused was not appearing in the trial. Section 256 CrPC contemplates acquittal of the accused, who is before the court and not when he is absconding from the trial.”

The Court also examined the scope of revisional powers under Sections 397–401 CrPC and reiterated that such jurisdiction exists to correct illegality, impropriety, or jurisdictional error.

Relying on Amit Kapoor v. Ramesh Chandra, the Bench noted that revisional power may be exercised where there is palpable error, non-compliance with law, or arbitrary exercise of discretion.

Conclusion

The High Court held that the Magistrate’s order dismissing the complaints and acquitting the accused under Section 256 CrPC, despite the accused never appearing for trial, was contrary to law and unsustainable.

Accordingly, the application moved by the complainant was allowed with direction to the Additional Civil Judge or trial Magistrate to speed up the trial of all cases detailed above in accordance with the directions issued by the Hon’ble Supreme Court In-Re Expeditious Trial of Cases Under Sectionn138 NI Act, 1881.

Cause Title: Gopal Prased Sharma v. State of U.P. & Anr. and connected matters (Neutral Citation: 2026:AHC:29741)