Appeal Against Acquittal Under Section 138 NI Act Can Be Dismissed For Non-Prosecution If Complainant Fails To Serve Notice On Accused: Andhra Pradesh High Court

AMARAVATI: Observing that an appellate court cannot decide an appeal against acquittal on merits and convict an accused without serving notice or affording an opportunity of hearing, the Andhra Pradesh High Court held that an acquittal appeal preferred by a complainant under Section 138 of the Negotiable Instruments Act, 1881 can be dismissed for non-prosecution where steps for service are persistently neglected. Justice Alapati Giridhar, in a judgment delivered on November 3, 2026, distinguished the classic bar against dismissing criminal appeals for default, carving out an exception for stale complainant appeals where notice was never perfected.

The appellant, National Cooperative Bank Ltd., instituted a private complaint under Section 138 of the Negotiable Instruments Act against the accused respondent. On September 1, 2008, the Trial Court acquitted the accused under Section 256 of the Code of Criminal Procedure, 1973, recording the non-appearance of both the complainant and its counsel. The appellant assailed the acquittal before the High Court in 2009, but failed to take steps to serve notice on the accused for over sixteen years, leaving the matter lingering indefinitely on the old pendency list.

Whether an appellate court can proceed to adjudicate an appeal on merits against an order of acquittal under Section 138 of the Negotiable Instruments Act without serving notice on the accused or affording an opportunity to be heard.

Whether the High Court can invoke its inherent powers to dismiss an appeal against acquittal for non-prosecution when the complainant fails to take steps for serving notice on the accused despite multiple opportunities.

The High Court acknowledged the well-settled rule governing criminal appeals laid down by the Supreme Court in Bani Singh v. State of U.P., which mandates that appellate courts cannot dismiss an appeal for default simpliciter under Sections 385 and 386 of the CrPC. The bench observed that Bani Singh predominantly addressed appeals against conviction instituted by accused persons, where the State is represented by a Public Prosecutor and the record can be independently examined to ensure justice.

Accused cannot be convicted in appeal without service of notice

Addressing the procedural dynamic in private complaints, the Court pointed out that an appeal against acquittal stands on an entirely different footing, particularly where notice has not even been served on the respondent.

The Court held that the complainant is obligated to assist the court and take prompt steps to secure the appearance of the accused, noting:

"The Complainant has to take steps to serve notice on the Accused and assist the Court for disposal of the Appeal, the Court cannot proceed to decide the Appeal on merits as the Court cannot allow the Appeal and convict the accused even without serving notice on him."

The bench clarified that if notice had been successfully served on the accused and the accused subsequently chose not to appear or engage counsel, the Court would have been legally bound to decide the matter on merits by perusing the record in accordance with Bani Singh. However, where the respondent remains completely unserved due to the complainant's inaction, deciding the appeal on merits is legally impermissible.

Courts can invoke inherent powers to weed out abandoned acquittal appeals

Drawing support from Supreme Court rulings in Associated Cement Co. Ltd. v. Keshvanand and National Small Industries Corporation Limited v. State (NCT of Delhi), the bench underscored that Section 256 CrPC was explicitly enacted to deter dilatory tactics by complainants who set the criminal law in motion and later abandon the cause.

The Court reasoned that when an appellant consistently fails to take steps to serve notice, the High Court cannot remain powerless or keep appeals pending indefinitely to burden the docket:

"If this course is not followed, the Appeal would remain pending for years, as in this case even when the Complainant has failed to appear and even to take steps to serve notice on the Accused despite opportunities, where the Appeal cannot be disposed of on merits without giving the Accused an opportunity to be heard, which amounts to burdening the Courts by adding these Appeals to the existing list of cases of old pendency."

The bench observed that this specific dimension did not arise for consideration in Bani Singh. Consequently, both the High Court under its inherent jurisdiction and the Sessions Judge hearing an appeal from a complainant can dismiss an appeal for non-prosecution under such recalcitrant circumstances.

The High Court accordingly dismissed the criminal appeal for non-prosecution on account of the appellant’s prolonged failure to take steps for service and total lack of instructions. All pending miscellaneous applications were closed.

Date of Decision: November 3, 2026