Section 256 CrPC must guide dismissal of cheque dishonour complaints; default dismissal without notice was unsustainable.

A complaint under Section 138 of the Negotiable Instruments Act cannot be dismissed for want of prosecution without notice to the complainant and without applying Section 256 CrPC. The High Court noted that dismissal on the complainant's non-appearance through an attorney, when the complainant had not been issued notice, was unduly technical and inconsistent with the preference that cheque dishonour matters be decided on merits. It held that Section 256 CrPC permits acquittal only through judicial discretion and in accordance with its terms. As no proper order of acquittal had been passed and the facts did not justify default dismissal, the order was set aside.

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Issues: Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 could be dismissed for want of prosecution without issuing notice to the complainant and without considering the requirements of Section 256 of the Code of Criminal Procedure, 1973.

Analysis: The complaint had been dismissed on the complainant's non-appearance through her attorney, though the complainant herself had not been issued notice. The dismissal was held to be unduly technical and contrary to the preference that cheque dishonour complaints be decided on merits. The Court noted that Section 256 of the Code of Criminal Procedure, 1973 governs non-appearance of the complainant and empowers the Magistrate to acquit the accused only in accordance with that provision and by exercising judicial discretion. As no order of acquittal had been passed and the circumstances did not justify dismissal for default, the impugned order could not be sustained.

Conclusion: The dismissal of the complaint for want of prosecution was held unsustainable and was set aside in favour of the petitioner.

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