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Discussion > Criminal Law > Cheques > Dismissal of 138 complaint   Unanswered Threads Post New Topic

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There are 14 Replies to this message

Parveen Kr. Aggarwal

[ Scorecard : 5430]
Posted On 30 January 2010 at 00:48 Report Abuse

In case of dismissal in default of a complaint (failure of the complainant to appear) what is the remedy available to the complainant?

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Arvind Singh Chauhan

[ Scorecard : 12867]
Posted On 30 January 2010 at 08:31 Report Abuse

I think revision in session court.


[ Scorecard : 197]
Posted On 30 January 2010 at 09:03 Report Abuse


File a revision before the Session Judge under section 397 read with section 399  of the code of Criminal Procedure 1973.

Adinath@Avinash Patil

[ Scorecard : 5156]
Posted On 30 January 2010 at 09:32 Report Abuse


sridher mariappan

[ Scorecard : 105]
Posted On 30 January 2010 at 09:49 Report Abuse


you remedy is only to file Revision before the HC and not District Court.

thanks and regards



sridher mariappan

[ Scorecard : 105]
Posted On 30 January 2010 at 09:57 Report Abuse


clarification Pls:

pls refer to 2003[2] DCR PAGE 96. KALPANA tYAGI Vs. Snehlata Sharma.

2003]2]2 DCR 112

it is seen from that judgment that appeal before the HC alone is maintainable since the magistrate has passed an ordre acquiting the accused under sec.256 of the code.



Total thanks : 1 times


[ Scorecard : 5008]
Posted On 30 January 2010 at 23:46 Report Abuse


Revision is not maintainable before the sessions court,

you have to approach the High court, 

(it is rightly suggested by the sridher) I never expected the wrong advise from Arvind and Adinath


[ Scorecard : 5008]
Posted On 31 January 2010 at 00:39 Report Abuse

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Dismissal of complaint in default - Magistrate cannot order restoration of complaint even if complainant shows very good reasons for his failure to be present on the date of dismissal of complaint - The only remedy available to the complainant is to approach High Court u/s 482 Cr.P.C. for setting aside the order of dismissal of complaint. (Om Parkash Vs M/s.Golden Forest India Ltd. & Ors.) 2008(3) Civil Court Cases 105 (P&H) : 2008(2) Criminal Court Cases 429 (P&H)

sunil pagare

[ Scorecard : 337]
Posted On 03 February 2010 at 10:15 Report Abuse

Disimissing complaint its amounts an aquittal of accused & in case of aquittal in private ,appeal lies to HIGH COURT as my Jitendra & Sridhar said.

Hemant Agarwal Mumbai : 9820174108
[ Scorecard : 4989]
Posted On 03 February 2010 at 12:19 Report Abuse



1.  Complaint under the N.I.Act,  is a private complaint.  The trial court cannot lead the complaint on suo-motto basis.


2.  If the complainant is absent in the court  (whether deliberately or otherwise or whatever-so-wise) FOR  SEVERAL CONSECUTIVE DATES,   then there is nobody to lead the prosecution (trial, evidence, cross & arguments, etc...).


3.  If the complaintant is absent to lead the prosecution,  then the court has no option but to   "DISMISS"  the complaint, de facto.  The MM on it own,  cannot proceed against the accused, nor lead the prosecution, since the concept of  "criminal & vicarious liability"  can be fastened only & only by prosecution evidences & documents,  which will be absent, when the complainant himself remains absent.  AND further more, under the law,  there is no such thing as  "deemed criminal & vicarious liability" against the accused.


4.  Accused can be termed as   "Acquitted"  or  "Convicted",   ONLY & ONLY if proved DURING THE TRIAL ....  AND NOT OTHER WISE.   There is no such thing as  AUTOMATIC  Acquital or Conviction, under our Laws.  Our Law says  "presumed  innocent untill proved guilty".


5.  If the trial has not commenced, then the MM has no jurisdiction to  order to "Acquit or Convict" any accused.  The maximum jurisdiction the MM has. is to dismiss the case.


6.  Dimissal of the case is not equal to Acquital or Conviction.  It will only mean simply as  "Case Dismissed",   for reasons such as abuse of process of law or otherwise.
The case can be dismissed for a spectrum of reasons (lack of proper notice, illegal debt, law of limitation, forged documents,  etc..... )   BUT all this does not mean  "Acquital or Conviction" of the accused.


7.  IF   "dismissal of case" is automatically & magically equivalent to "acquital",  then in the same vein  it can also be hallucinated & construed as   "conviction"  in a case dismissal.   AND WHY NOT ?


8.  IF the complaint consistently  remains  absent in the trial court,  there is no measure to understand the reasons for his absence for prosecution purposes.   On the contrary, the complaintant will be termed as having abused the judicial process.
Going by this logic,  the complainant forfeits his constitutional rights to approach  ANY higher court, under ANY section & Act, for ANY relief whatsoever.  No Writ can be maintainable.


9.  Constitutional relief in higher courts can be maintainable only if there is a question or lacuna of process of law leading to Acquital or Conviction


QUESTION :  JUST in case If the complainant was absent in court  THEN  WHERE .... Where .... where  was the complainant's counsel (Advocate) when the case was put up before the MM.  DID he swallow up the complainant's fees OR did he construe it as a donation from the complainant  OR what ?



IF, forum members wish to counter-discuss the above,  please do so with proper reasonings and justifications.

Keep Smiling .... Hemant Agarwal

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