Complainant's Appeal Against Acquittal In Cheque Bounce Case Can Be Dismissed If Accused Is Not Served Notice: AP High Court

The Andhra Pradesh High Court has held that an appeal filed by a complainant challenging the acquittal of an accused under Section 138 of the Negotiable Instruments Act, 1881, can be dismissed for non-prosecution where the complainant repeatedly fails to take steps to serve notice on the accused despite several opportunities. [2026 LiveLaw (AP) 276]

The Court clarified that the procedure for deciding criminal appeals depends on whether the appeal arises from a prosecution instituted by the State or a private complaint between individuals.

It held that where a complainant challenges an acquittal in a cheque dishonour case, the Court cannot decide the appeal on merits without serving notice on the accused and giving him an opportunity to be heard.

In this context, Section 138 of the NI Act deals with the dishonour of cheques for insufficiency of funds, while Section 256 of the Code of Criminal Procedure (CrPC) empowers a Magistrate to acquit the accused where the complainant does not appear, subject to the circumstances provided under the provision.

A Single Judge Bench of Justice Alapati Giridhar made these observations while dismissing an appeal filed by the National Cooperative Bank challenging the acquittal of an accused in a cheque dishonour complaint. The Court observed:

“However, when the Appeal is against acquittal under Section 138 of the Negotiable Instruments Act and the Complainant/Appellant or his counsel did not appear to take steps to serve notice on the Respondent/Accused in the Appeal despite several opportunities, whether this Court can proceed to decide the Appeal on merits against acquittal under Section 138 of the Negotiable Instruments Act even without serving notice on the Respondent/Accused and without giving an opportunity to the Accused to be heard. The answer is in the negative, as the Complainant has to take steps to serve notice on the Accused and assist the Court for disposal of the Appeal, the Court cannot proceed to decide the Appeal on merits as the Court cannot allow the Appeal and convict the accused even without serving notice on him.

This Court is of the humble view that when the Appeal is filed by the Complainant challenging an order of acquittal, and the Complainant consistently did not pursue the Appeal to take steps to serve notice on the Accused despite being granted several opportunities, this Court has no option except to exercise its inherent powers and dismiss the Appeal for nonprosecution.”

The case arose from a complaint filed by a bank against the accused under Section 138 of the NI Act. The trial court acquitted the accused in September 2008, under Section 256 CrPC after recording that neither the complainant nor its counsel was present.

Challenging the acquittal, the bank filed an appeal before the High Court in 2009. However, despite several opportunities, it failed to take steps to serve notice on the accused. On certain dates, none appeared on behalf of the bank.

When the matter was taken up, counsel appearing for the bank submitted that he was not in touch with the appellant and had no instructions. The same position had also been communicated to the Court in August 2025.

Taking note of the procedural history, the Court observed that the appeal had remained pending for about 16 years and the appellant had not shown interest in prosecuting it.

The Court distinguished between State prosecutions and cases instituted through private complaints. In cases prosecuted by the State under the IPC/BNS, an appeal against conviction must be decided on merits even if the accused or his counsel does not appear, as the State is represented by the Prosecutor.

However, in private complaints between individuals, such as proceedings under Section 138 of the NI Act, an appeal against conviction must be decided on merits after duly serving notice on the respondent/complainant.

The Court further observed that just as a Magistrate can dismiss a complaint and acquit the accused under Section 256 CrPC, a Sessions Judge can also dismiss an appeal filed by the complainant for non-prosecution.

The Court observed that if such appeals are allowed to remain pending indefinitely, despite the complainant failing to take steps to serve notice on the accused, it would add to the pendency of old cases.

It accordingly exercised its inherent powers to dismiss the appeal for non-prosecution.

Counsel for the Appellant: N. Ravi Prasad

Counsel for the Respondents: Public Prosecutor