2026:HHC:22560 _____________________________ 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 569 of 2026 Reserved on: 03.06.2026 Date of Decision: 17.06.2026 M/s Roop Hardwares ...Petitioner Versus Joginder Singh Chauhan ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the petitioner : Mr Jeevesh Sharma, Advocate. For the respondent : Nemo Rakesh Kainthla, Judge The petitioner was a complainant before the learned Trial Court. He had filed a complaint for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). He did not appear before the Court on 04.11.2025, and the Court issued a notice to him returnable for 27.01.2026. He was duly served, but he failed to appear before the Court. The Court again issued a notice to him returnable for 2 2026:HHC:22560 20.04.2026. Again, the notice was served upon the complainant, but he did not appear, and the Court dismissed the complaint for non-prosecution. 2. Being aggrieved by the order passed by the learned Trial Court, the petitioner has filed the present petition under Section 528 of Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, asserting that his counsel had assured him that he (the counsel) would attend the hearing scheduled for 20.04.2026 and the personal appearance of the complainant was not required. Further, a resolution was passed by the Shimla Bar Association requesting the Courts not to carry out the effective hearings. Learned counsel came to know in the evening that the case had been dismissed in default. The dismissal is wrong because the complainant’s presence was not required on each and every date of the hearing. Learned Trial Court dismissed the complaint by adopting a hyper-technical and pedantic approach; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 3. Mr Jeevesh Sharma, learned counsel for the petitioner/complainant, submitted that the learned Trial Court 3 2026:HHC:22560 erred in dismissing the complaint for non-prosecution. The presence of the petitioner/complainant was not required, and the complaint should not have been dismissed in default. He relied upon the following judgments in support of his submissions:  Mohd. Azeem vs. A. Venkatesh and another 2002 SCC OnLine SC 756;  Sai Enterprises vs. M/s Aandr Finance Pvt. Ltd. and others Cr.MMO No. 466 of 2026, decided on 18.05.2026; and  Vinod Kumar Verma vs. Ranjeet Singh Rathore 2016:HHC: 3184 4. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 5. The petitioner has filed the present petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (corresponding to Section 482 of CrPC). It was laid down by this Court in H.P. Financial Corporation v. Continental Spinners Ltd., 2003 SCC OnLine HP 62, that an order dismissing a complaint under Section 250 Cr.P.C. amounts to an acquittal and no revision or a petition under Section 482 4 2026:HHC:22560 Cr.P.C. lies against such an order. The remedy of the complainant is to file an appeal against an acquittal. It was observed: 4. There is no dispute that the case against the respondents No. 1 and 2 was a summons case. Section 256 of the Code provides for the consequences of non- appearance of a complainant in a summons case after the summons has been issued on the complaint and reads as follows: “256. Non-appearance or death of the complainant.— (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or arty day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution, or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-s. (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death,” 5. It is clear on a bare reading of the aforesaid provisions that in a case where the summons has been issued on the complaint in a summons case and the complainant fails to appear when the case is called on the day fixed for appearance of the accused, or on any adjourned date of hearing, the trial 5 2026:HHC:22560 Magistrate may acquit the accused or adjourn the case or proceed to hear the case, if complainant is represented by a pleader. 6. 6. In the case in hand, since the complainant or his advocate was not present, the complaint was dismissed by the impugned order. Evidently, the learned trial Magistrate neither chose to adjourn the case for a future date nor to proceed with the case. Therefore, for all intents and purposes, the impugned order dismissing the complaint has the effect of an acquittal. 7. Since the case was instituted on a complaint and the dismissal of the complaint has the effect of acquittal, therefore, in view of the provisions of sub- sec. (4) of S. 378 of the Code, the remedy of the complainant was to make an application seeking special leave to appeal against the impugned order and present an appeal, which course the complaint had not adopted. 8. Sub-section (4) of S. 401 of the Code provides that where under the Code, an appeal lies, and no appeal is preferred, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Therefore, the petitioner having failed to appeal against the impugned order, the revision petition is not maintainable. 9. Provisions of S. 482 of the Code can also not be invoked where the remedy of appeal was available to the petitioner. 10. In view of the position in law, the present petition is not maintainable and is accordingly dismissed. 6. Therefore, in view of the binding precedent of this Court, the petition under section 528 of BNSS (corresponding to section 482 of Cr.P.C.) is not maintainable. 6 2026:HHC:22560 7. It was submitted that the present petition can be treated under Section 419 of the BNSS. This submission is not acceptable because an appeal against acquittal lies after seeking leave from the Court. No application seeking leave has been filed, and the present petition cannot be treated under Section 419 of the BNSS. 8. Since the petition is held to be not maintainable, the judgments in Sai Enterprises (supra) and Vinod Kumar Verma (supra) do not apply to the present case. 9. In view of the above, the present petition is dismissed as not maintainable. However, this order will not prevent the petitioner from availing the remedy as may be permissible under the law. 10. The present petition stands disposed of in the aforesaid terms, so also the pending applications, if any. (Rakesh Kainthla) Judge 17th June, 2026 (ravinder)