Magistrate Can't Dismiss Complaint When Counsel is Misled by Clerical Error: Bombay High Court Restores Cheque Bounce Case Quashed Due to Advocate’s Absence

“Principles of natural justice are the backbone of judicial process and cannot be sacrificed at the altar of technicalities.” – Bombay High Court reviving a complaint under Section 138 of the Negotiable Instruments Act, 1881, which had earlier been dismissed by the Magistrate for want of prosecution. The High Court held that procedural lapses, especially those not deliberate, must be weighed against the core requirement of natural justice.

The case arose from a financial transaction between Amit Sunarlal Shahu (complainant/appellant) and Hare Madhav Electronics, through its proprietor Vijay Motilal Pinjwani (accused/respondent). On 7th December 2018, the respondent allegedly borrowed ₹2,50,000 from the complainant for business purposes, assuring repayment within a month. To discharge this liability, the respondent issued a cheque of ₹2,50,000.

However, the cheque was dishonoured upon presentation, prompting the complainant to file Summary Criminal Case No.1989/2019 under Section 138 of the Negotiable Instruments Act, 1881.

The trial lingered for years, eventually culminating in an order dated 07/01/2023 by the Additional Chief Judicial Magistrate, Akola, dismissing the complaint for non-appearance of the complainant and his counsel, and consequently acquitting the accused under Section 256 of the Criminal Procedure Code.

The principal issue before the Bombay High Court was: "Whether a trial court is justified in dismissing a cheque dishonour complaint under Section 256 CrPC when the complainant fails to appear on a couple of occasions due to clerical errors and not due to deliberate default?"

The High Court underscored that Section 256 CrPC, which empowers the Magistrate to acquit the accused if the complainant is absent, must be interpreted with judicial restraint and a sense of fairness.

Citing the judgment in Shri Shaikh Akbar Talab vs. A.G. Pushpakaran & Anr., 2018 ALL MR (Cri) 1208, the Court observed: “It is held that principles of natural justice are required to be followed by giving an opportunity to the complainant to prosecute the complaint on merits as well as an opportunity is to be given to the accused to contest the complaint on merits.”

The Court emphasized that the complaint had been pending since 2019 and the records (roznama) revealed consistent efforts by the complainant and his counsel to appear in court. On several occasions, their absence was due to the Presiding Officer being on leave, or due to genuine miscommunication regarding adjourned dates.

“Merely on few occasions, if both [complainant and counsel] are absent, that by itself would not be sufficient to pass the order of dismissal for non-prosecution and thereby acquittal of the accused.”

The High Court held that the Magistrate's order was unduly harsh and contrary to the principles of natural justice, particularly when the default was neither deliberate nor consistent.

The High Court, through Justice M.M. Nerlikar, passed the following key orders:

1. The impugned order dated 07/01/2023 was quashed and set aside.

2. The complaint under Section 138 NI Act was restored to its original stage.

3. The matter was remanded back to the trial court to be decided afresh on merits.

4. The parties were directed to appear before the trial court on 22/09/2025.

5. The appellant was directed to pay ₹2,000 as cost to the respondent.

6. The appellant was instructed to proceed with the trial diligently and without seeking unnecessary adjournments.

The Bombay High Court's decision reinforces the judiciary's commitment to substantive justice over procedural rigidity. It reiterates that natural justice and fair hearing must be the cornerstone of criminal adjudication, especially in cheque bounce cases where the complainant seeks enforcement of a financial liability.

In cases where absence is due to inadvertent error and not deliberate default, courts must adopt a balanced approach rather than imposing draconian consequences such as outright dismissal.

“The Court ought to have adopted a liberal approach, as the appellant and his counsel diligently and sincerely attended the Court on multiple occasions.” – Justice M.M. Nerlikar

Date of Decision: September 9, 2025