Cheque Bounce Complaint Cannot Be Dismissed For Want Of Prosecution Before Accused Is Served: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court held that a complaint under Section 138 of the Negotiable Instruments Act should not be dismissed for want of prosecution when the accused has not yet been served and the matter is still at a preliminary stage.

A bench of Justice Sanjay Parihar quashed an order of the trial court dismissing a cheque bounce complaint and restored the case to its original number.

The petitioner had filed four complaints under Section 138 of the Negotiable Instruments Act, 1881 against the respondent. According to the petitioner, all four matters were pending before the same trial court and were being pursued together.

However, one of the complaints was dismissed for want of prosecution on October 12, 2022 after the complainant was absent when the case was listed.

Challenging the order before the High Court under Section 482 of the Code of Criminal Procedure, 1973, the petitioner argued that the complaint was dismissed even though the accused had not yet been served and the matter was still pending for securing the presence of the respondent.

High Court's Observations

The Court noted that service upon the respondent had not yet been effected and that the matter was still at a nascent stage.

It observed that once the statutory requirements under the Negotiable Instruments Act are satisfied, presumptions arise under Sections 118 and 139 of the Act that the cheque was issued in discharge of a legally enforceable debt or liability.

In such circumstances, the Court held that the mere absence of the complainant on some hearing dates could not justify dismissal of the complaint, particularly when the presence of the accused had not yet been secured.

The Court further noted that the impugned order merely recorded the absence of the complainant and did not examine the stage of proceedings or the status of service upon the accused.

Complaint Restored

Holding that the dismissal had caused serious prejudice to the complainant and resulted in miscarriage of justice, the Court quashed the trial court's order.

The complaint was restored to its original number and the trial court was directed to proceed with the case in accordance with law.

The parties were directed to appear before the trial court on April 7, 2026.

Case-Title: Gopal Dass vs Surinder Kumar, 2026

Appearance:

Mr. A. K. Sawhney, Sr. Advocate with Ms. Khushboo Sharma, Advocate Ms. Tehseena Bukhari, Advocate Mr. Harsh Singh, Advocate for Petitioner

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