Complainant’s Appeal Against Acquittal Under Section 138 NI Act Can Be Dismissed For Non-Prosecution If Notice Not Served On Accused Despite Repeated Opportunities: Andhra Pradesh High Court

AMARAVATI: Observing that an appellate court cannot decide an appeal on merits to convict an accused without serving notice or affording an opportunity of being heard, the Andhra Pradesh High Court held that a complainant’s appeal against an acquittal under Section 138 of the Negotiable Instruments Act can be dismissed for non-prosecution if the complainant consistently fails to take steps to serve notice on the respondent-accused.

Justice Alapati Giridhar rendered the verdict on November 3, 2026, while distinguishing the bar on dismissing criminal appeals for default as laid down in the landmark Supreme Court ruling in Bani Singh v. State of U.P.

The appellant, National Cooperative Bank Ltd., filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent. On September 1, 2008, the trial court acquitted the accused under Section 256 of the Code of Criminal Procedure due to the absence of the complainant and its counsel. The appellant challenged the acquittal before the High Court in 2009, but failed to take steps to serve notice on the respondent-accused despite repeated opportunities over sixteen years, leaving counsel without instructions.

Whether the appellate court can decide a criminal appeal on merits against an order of acquittal under Section 138 of the Negotiable Instruments Act when the complainant has failed to serve notice on the accused for years.

Whether the general rule prohibiting dismissal of criminal appeals for non-prosecution under Sections 385 and 386 of the Code of Criminal Procedure applies to an unserved appeal against acquittal filed by a complainant.

The High Court began by examining the established precedent laid down by a three-judge bench of the Supreme Court in Bani Singh v. State of U.P., which mandated that criminal appeals cannot be dismissed for non-prosecution simpliciter and must be disposed of on merits after perusing the lower court record. The bench noted that Bani Singh addressed appeals filed by convicted individuals against the State, where the prosecutor assists the court and the record is readily available to test the correctness of the conviction.

Bani Singh principles apply primarily to appeals against conviction or where notice has been duly served on the opposite party

Justice Giridhar observed that while criminal appeals challenging convictions must be disposed of on merits even in the absence of the appellant or counsel, entirely different considerations arise in private complaint cases involving appeals against acquittal. The Court emphasized that in complaints under Section 138 of the Negotiable Instruments Act, the presence or formal notice to the accused is indispensable before an acquittal can be overturned.

The Court highlighted that natural justice and statutory fairness preclude an appellate court from adjudicating an appeal on merits to reverse an acquittal and convict an accused person without giving them notice and a reasonable opportunity to be heard.

Appellate courts cannot reverse an acquittal and convict an accused without affording notice and an opportunity of hearing

Addressing the practical dilemma created by inactive litigants, the Court remarked that if notice has been served on the accused and they fail to appear, the Court can proceed on the merits in line with Bani Singh. However, where the complainant completely fails to take steps to effectuate service in the first place, proceeding on the merits becomes legally untenable.

The bench observed that the dimension of an unserved appeal against acquittal under Section 138 of the Negotiable Instruments Act was not contemplated in Bani Singh, which did not deal with situations where the respondent-accused had never been brought before the appellate forum due to the complainant's laches.

Magistrates and appellate courts possess the authority to deter dilatory tactics by non-appearing complainants

Drawing support from the 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 statutory provisions such as Section 256 CrPC are intentionally framed to deter dilatory conduct by complainants who set the criminal law in motion but subsequently abandon proceedings.

The High Court held that both Sessions Courts and the High Court possess inherent powers to dismiss appeals against acquittal for non-prosecution under such circumstances, avoiding endless pendency on court dockets.

Dismissing the sixteen-year-old appeal for non-prosecution, the High Court held that keeping such matters indefinitely pending would unduly burden the judiciary when the complainant shows no interest in prosecuting the lis or serving notice on the accused.

Date of Decision: November 3, 2026