Does Dismissal Of Complaint U/S 138 NI Act For Want Of Prosecution Amount To Acquittal U/S 256(1) CrPC?: Allahabad HC Refers Question To Larger Bench

The Allahabad High Court has referred to a larger bench the question as to whether the dismissal of complaint u/s 138 of the Negotiable Instruments Act 1881 for want of prosecution will amount to acquittal u/s 256(1) CrPC, and same can be challenged in appeal u/s 378(4) CrPC or is that order revisable u/s 397 CrPC?

A bench of Justice Arun Kumar Singh Deshwal referred the matter to a larger bench while disagreeing with the order of a co-ordinate bench in the case of Vinay Kumar Vs. State of UP 2007 wherein it was observed that against the dismissal of complaint u/s 138 NI Act, an appeal lies u/s 378(4) CrPC and not a revision.

The single-judge prima facie observed that wherein a complaint u/s 138 of the NI Act is dismissed for want of prosecution, then the same cannot be deemed to be an order of acquittal u/s 256(1) of CrPC. This is primarily because Section 256(1) of the CrPC pertains to the procedure for summons cases, whereas Section 138 proceedings are summary in nature and hence, such proceedings are not governed by the procedural framework outlined in Chapter XX of the CrPC (Sections 251 to 259), which deals with the trial of summons cases by magistrates.

"...unless this case is converted from summary trial to summons trial by the specific order of the Magistrate, the procedure of summons trial mentioned in Chapter XX of Cr.P.C. cannot be adopted while trying a case as a summary trial. Therefore, if the case is being tried strictly as a summary trial as per Chapter XXI of CrPC, then the procedure mentioned in Chapter XX of CrPC from Sections 251 to 259 of CrPC would not be applicable," the Court emphasised.

The observation was made while the Court was essentially dealing with an application filed under Section 482 CrPC by one Abhishek Mishra challenging the entire proceedings of a case under Section 138 of the NI Act pending in the Court of Additional Civil Judge (J.D.)/Judicial Magistrate Third, Jaunpur.

The case in brief

It was the case of the petitioner that the Section 138 complaint of the opposite party No. 2 was rejected by an order dated March 13, 2019, for non-prosecution as well as for not producing any evidence despite giving repeated opportunities. Against that very order, a revision was preferred by the opposite party No. 2, which was allowed by an order dated October 26, 2019, and the matter was remanded to the Court below to consider the same on merits.

It was the primary contention of the Counsel for the petitioner that the order of the revisional Court was erroneous as no revision was maintainable against the order dismissing the complaint as the same amounts to acquittal and the same can be challenged by way of an appeal under Section-378(4) of CrPC and hence, the revisional court has no jurisdiction to entertain the revision against the original order.

In support of his contention, the counsel for the applicant relied upon the judgement of the coordinate Bench of this Court in the Vinay Kumar case (supra).

On the other hand, the counsel for the opposite party No. 2 and State Law Officer submitted that the proceeding under the NI Act is a summary proceeding (as per Section 143) which says that for the proceeding of the Act, 1881, Sections 262 to 265 of CrPC (Summary Trials) will be applicable, and a provision of appeal is provided u/s 148 of the Act, 1881 against the conviction u/s 138 of the Act, 1881.

Perusing the scheme of the NI Act, the court noted that the second proviso of Section-143 of the Act makes it clear that if the Magistrate thinks that the case is of such nature that a sentence of imprisonment exceeding one year may have to pass, or for any other reason, it is undesirable to try the summary, in that case, the Magistrate, after recording his reason, will proceed to hear the case as per the procedure provided for the summons case in CrPC.

Therefore, the Court further opined that in cases, where the Magistrate has not recorded any reason to convert the trial from summary to summons case, then the summary trial procedure will continue and in such cases, if a complaint is dismissed for want of prosecution, then the same cannot be deemed to be acquittal u/s 256(1) of CrPC and therefore, against the dismissal of the complaint, no appeal would lie, and rather a revision would be maintainale.

However, noting that the HC's co-ordinate bench has already taken a different view in the case of Vinay Kumar case (supra), the Court deemed it fit to refer the matter to a larger bench to decide the following two questions:

(i) Whether the dismissal of complaint u/s 138 of the Act, 1881 for want of prosecution will amount to acquittal u/s 256(1) CrPC, and same can be challenged in appeal u/s 378(4) CrPC, or is that order revisable u/s 397 CrPC?

(ii) Whether the case of Vinay Kumar (supra) has been correctly decided by holding that against the dismissal of complaint u/s 138 of the Act, 1881, an appeal lies u/s 378(4) CrPC, not the revision?

Case title - Abhishek Mishra @ Pintu vs. State of U.P. and Another 2024 LiveLaw (AB) 175 [APPLICATION U/S 482 No. - 3099 of 2024]

Case Citation: 2024 LiveLaw (AB) 175

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