The Andhra Pradesh High Court has held that it cannot decide a complainant’s appeal against acquittal under Section 138 of the Negotiable Instruments Act on merits without first serving notice on the accused. If the complainant repeatedly fails to serve that notice despite several opportunities, the Court can use its inherent powers to dismiss the appeal for non-prosecution.
Justice Alapati Giridhar said this in dismissing an appeal filed by National Cooperative Bank Ltd., which had been pending since 2009.
Background
The bank had filed a cheque bounce complaint under Section 138 of the NI Act. On 1 September 2008, the trial court acquitted the accused under Section 256 of the Code of Criminal Procedure, 1973, after recording that both the complainant and its counsel were absent. The bank challenged that order before the High Court.
K.V. Akhileswra Reddy, appearing on behalf of N. Ravi Prasad, counsel for the appellant bank, told the Court that the appellant was not in touch with counsel and that he had no instructions. The record showed the same had been stated on 21 August 2025. It also showed that the appellant had not served notice on the accused for all these years despite many opportunities, and that on some dates nobody appeared for it. The State was represented by the Public Prosecutor.
The Court noted, “It appears the Appellant has not been showing interest in prosecuting the Appeal for all these years”, and recorded that the matter was on the old pendency list.
The question before the Court
Justice Giridhar began with the settled position: “a criminal appeal cannot be dismissed for non-prosecution or default and the appeal must be decided on its merits.” He framed the question as whether the Court could decide an appeal against acquittal under Section 138 on merits without serving notice on the accused and without giving the accused a chance to be heard.
Andhra Pradesh High Court on Section 138 appeals and Bani Singh
The Court examined the three-judge Bench ruling in Bani Singh and Others v. State of U.P. (1996) 4 SCC 720. That case held that Sections 385 and 386 CrPC do not contemplate dismissing an appeal for non-prosecution simpliciter, and that appeals must be disposed of on merits. The Court noted that Bani Singh arose from an accused’s appeal against conviction.
It also relied on Associated Cement Co. Ltd. v. Keshvanand (1998) SCC (Cri) 475 and National Small Industries Corporation Limited v. State (NCT of Delhi) (2009) 1 SCC 407. Those rulings recognise a Magistrate’s power under Section 256 CrPC to dismiss a complaint when the complainant is absent.
The Court explained that in an appeal against conviction in a complaint case, Bani Singh applies once notice has been duly served. An appeal against acquittal is different. The Court held that the answer to the question was in the negative, “as the Court cannot allow the Appeal and convict the accused even without serving notice on him.”
If notice is served and the accused does not appear or engage counsel, the appeal must be decided on merits in line with Bani Singh, the Court added.
Where the complainant consistently fails to take steps to serve notice, the Court said it has “no option except to exercise its inherent powers and dismiss the Appeal for non-prosecution”. It noted that this situation did not fall for consideration in Bani Singh. It also said a Sessions Judge may proceed the same way in such circumstances.
Otherwise, the Court said, these appeals would stay pending for years, “which amounts to burdening the Courts by adding these Appeals to the existing list of cases of old pendency.”
Outcome
The appeal was dismissed for non-prosecution, and all pending miscellaneous applications were closed.
Case Title: National Cooperative Bank Ltd. v. S. Mary Joyice and Another
Case No.: Criminal Appeal No. 1022 of 2009
Bench: Justice Alapati Giridhar
Date: 03.11.2026
