Complaint Dismissal for Default under NI Act must be exercised judicially, with Section 256 CrPC considered before closure.

A complaint under Section 138 of the Negotiable Instruments Act, 1881, when the complainant is absent, is governed as far as may be by Section 256 of the Code of Criminal Procedure, 1973. The power to dismiss the complaint or acquit the accused in default is discretionary and must be exercised judicially, not mechanically. A single non-appearance, without more, should not justify a hyper-technical dismissal where the matter can be decided on merits, and the Magistrate must consider adjournment or any other course permitted by law. On these principles, dismissal for default was held unsustainable and was set aside.

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Issues: Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 could be dismissed in default for non-appearance of the complainant without considering the procedure under Section 256 of the Code of Criminal Procedure, 1973.

Analysis: A complaint under the Negotiable Instruments Act is governed, so far as may be, by Section 256 of the Code of Criminal Procedure, 1973 when the complainant is absent. The power to dismiss or acquit in such circumstances is discretionary and must be exercised judiciously. A single default, without more, should not lead to a hyper-technical dismissal where the case ought to be decided on merits, and the Magistrate was required to consider whether the case warranted adjournment or any other course permissible in law.

Conclusion: The dismissal of the complaint for default was unsustainable and was rightly set aside.

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