Dismissal of Complaint for Non-appearance Is Acquittal — Magistrate Cannot Recall Complaint under the Guise of Restoration: Punjab & Haryana High Court

“Only Appeal Lies Against Acquittal under Section 256 CrPC — Restoration by Magistrate Is Without Jurisdiction”, In a significant ruling with implications for criminal complaints under the Negotiable Instruments Act, 1881, the Punjab and Haryana High Court on 21 July 2023 held that once a complaint is dismissed in default due to non-appearance of the complainant and the accused is present, it results in acquittal under Section 256(1) of the CrPC, and no Magistrate has jurisdiction to restore such a complaint.

The Court, presided by Justice Deepak Gupta, quashed the restoration order dated 24.07.2019 passed by the Judicial Magistrate First Class, Chandigarh, observing that such restoration was a legal impossibility.

The case was titled Hardeep Singh Sandhu v. M/s Intex Technologies (India) Ltd, CRM-M-40152 of 2019.

“Dismissal in Default for Want of Prosecution Is Acquittal, Not a Mere Procedural Lapse”

The High Court emphasized the legal consequence of a complaint being dismissed in default under Section 256 CrPC, stating:

“When the complainant did not appear on 24.01.2018, learned Magistrate exercised the first option i.e. to dismiss the complaint and acquit the accused, though the word ‘discharge’ has been used. Acquittal can be challenged only before this High Court under Section 378 Cr.P.C.”

The Court noted that though the Magistrate used the term "discharged", it cannot override the substantive legal effect of the dismissal, which in terms of Section 256 CrPC, must be treated as acquittal.

Restoration of Complaint Impermissible — "Magistrate Has No Power to Recall an Acquittal"

The impugned order restoring the complaint was passed by the Magistrate more than a year after the complaint had been dismissed in default. The Court held such restoration is wholly without jurisdiction:

“The Magistrate has no power to restore the complaint, which was dismissed in default, when accused has been acquitted, in a summons case. Even the revisional Court has no such power.”

The Court reiterated that the only legal remedy available to a complainant in such cases is to file an appeal under Section 378(4) CrPC, and not a petition for restoration.

“Revisional or 482 Petitions Cannot Revive a Dismissed Complaint — Appeal Is the Only Route”

The Court drew support from a series of earlier judgments, including Hardev Singh v. Savi Enterprises, Atul Sood v. Jalandhar Transport Cooperative Society, and Mohd. Sakil v. Sachin Saini, to underline the consistent judicial view that no restoration lies once dismissal amounts to acquittal.

Quoting from Mohd. Sakil, the Court emphasized:

“Law is well settled that if a complaint under Section 138 of the Act is dismissed in default due to nonappearance of complainant, the same amounts to acquittal and complainant is having right of appeal under Section 378(4) Cr.P.C. Hence, neither revision nor petition under Section 482 Cr.P.C. is maintainable without availing statutory right of appeal…”

Justice Deepak Gupta found no justification for the Magistrate’s act of restoring the complaint in 2019 after dismissing it for default in 2018.

Court Cautions Against Bypassing Procedural Finality

The Court stressed that procedural finality in criminal proceedings cannot be bypassed through misconceived applications for "restoration", especially when the law treats such dismissals as equivalent to acquittals:

“There can be no hesitation to conclude that once the complaint in question was dismissed in default for want of prosecution, due to absence of the complainant but in the presence of the accused, the said dismissal amounted to acquittal and the only remedy for the complainant-respondent was to file the appeal.”

Restoration Set Aside, Liberty to File Appeal

Allowing the petition filed by the accused, the High Court quashed the Magistrate’s order dated 24.07.2019, while granting liberty to the complainant to avail appropriate remedy in accordance with law:

“The impugned order dated 24.07.2019 passed by learned Judicial Magistrate Ist Class, Chandigarh is hereby set aside. However, the complainant-respondent will be at liberty to avail alternate remedy if available to him.”

This judgment reinforces the finality attached to acquittals under Section 256(1) CrPC, particularly in cheque bounce cases under Section 138 NI Act, where non-appearance of the complainant on the date of hearing in presence of the accused results in legal acquittal.

The ruling reiterates that Magistrates have no power to review or restore such complaints, and only an appeal lies under Section 378(4) CrPC.

With this judgment, the High Court sends a clear message: procedural lapses cannot be undone through backdoor routes, and statutory discipline must prevail in criminal justice administration.

Date of Decision: 21 July 2023