If the complainant repeatedly fails to attend hearings without a valid reason, this can work in your favor, since the prosecution's case relies heavily on their testimony and cooperation in many matters, particularly private complaints and cheque bounce cases. The court may issue notice or a warrant to secure the complainant's attendance, and prolonged and unexplained absence can eventually lead to the case being dismissed for non-prosecution, depending on the type of offence. Practically, make sure your lawyer is tracking each hearing and formally noting the complainant's absence on record, since this pattern becomes important if you later seek dismissal or a favorable order based on the delay.

To understand what this development means for your specific case, it is recommended to consult experienced retired judges and seek guidance from Aapka Legal Advice, whose panel can advise you on the best way to use this in your defense.

When the complainant is not attending hearings in a Mumbai criminal case, the consequences depend on whether it is a private complaint or a police case. In a private complaint summons case, the Magistrate may dismiss the case under Section 256 BNSS 2023 if the complainant repeatedly fails to appear. In a police case, the state continues the prosecution independently.

For a retired judge's assessment of what the complainant's non-appearance means for your Mumbai criminal case, consult at: https://aapkalegaladvice.com/lawyer/criminal-lawyers-in-mumbai/

Quick Answer Box

Complainant not attending hearings in Mumbai — what it means:

• Private complaint case: Section 256 BNSS may trigger — Magistrate can dismiss / acquit / discharge for non-appearance
• Police / FIR case: State continues prosecution; complainant's non-appearance as witness is a separate issue
• Complainant as witness: Prosecution can seek bailable warrant; if they don't appear → prosecution case weakens
• Accused's strategy: Apply for dismissal (private complaint); seek adverse inference; pursue settlement-based quashing
• Settlement signal: Non-appearance often signals private settlement — pursue joint quashing petition
• Restoration risk: Complainant can apply to restore case dismissed under Section 256 BNSS

Key Takeaways

• The most important question is whether this is a private complaint or a police (FIR-based) case — the consequences differ fundamentally.
• In a private complaint summons case, Section 256 BNSS 2023 empowers the Magistrate to dismiss the case, discharge, or acquit the accused if the complainant does not appear — but this is the Magistrate's discretion, not an automatic right.
• In a police case (FIR + chargesheet), the prosecution belongs to the state — the complainant's non-appearance does not automatically affect the state's case, though it weakens the prosecution's evidence.
• The accused should actively file an application for dismissal under Section 256 BNSS in private complaint cases rather than passively waiting.
• A complainant's repeated non-appearance often signals a private settlement — the accused should move to convert this into a formal joint quashing petition under Section 528 BNSS before the Bombay HC.
• Where the complainant is a prosecution witness in a police case, the accused can seek an adverse inference under Section 114(g) BSA 2023 if the prosecution fails to produce them.
• A case dismissed under Section 256 BNSS can be restored by the complainant if they show sufficient cause — the accused must respond to any restoration application.
• The Supreme Court and Bombay HC have held that the Magistrate's power under Section 256 BNSS is discretionary — the Magistrate may adjourn rather than dismiss even where the complainant is absent.

Complainant Not Attending Hearings in Mumbai — What Happens Now? Complete Legal Guide

Table of Contents

1. The Most Critical First Question — Private Complaint or Police Case?
2. Relevant Statutory Provisions
3. Private Complaint Cases — How They Work
4. Section 256 BNSS — The Default Dismissal Provision
5. What "Discretion" Means in Section 256 BNSS Practice
6. The Accused's Active Strategy in Private Complaint Cases
7. Police / FIR Cases — Complainant's Non-Appearance as a Witness
8. Bailable Warrant Against the Complainant-Witness
9. Adverse Inference When Complainant-Witness Is Absent
10. The Settlement Signal — Converting Non-Appearance into Quashing
11. The Joint Quashing Route After Non-Appearance
12. Restoration of a Dismissed Case — What the Complainant Can Do
13. How the Accused Should Respond to a Restoration Application
14. Summons Cases vs. Warrant Cases — The Section 256 BNSS Distinction
15. What If the Complainant Dies During Proceedings?
16. Latest Legal Position (2023–2026)
17. Landmark Supreme Court Judgments
18. Bombay High Court Position
19. Stage-Specific Strategy Based on Case Status
20. Documents to Obtain and Maintain
21. Timeline of Key Steps
22. Costs Involved
23. Common Mistakes When Complainant Is Absent
24. Risks and Limitations
25. Practical Legal Advice
26. Litigation Strategy
27. Step-by-Step Action Plan
28. Frequently Asked Questions
29. Conclusion

1. The Most Critical First Question — Private Complaint or Police Case?

Before any analysis of what the complainant's non-appearance means, one question must be answered: is this a private complaint or a police (FIR-based) case?

Private complaint: The complainant filed a complaint directly before the Magistrate (not through the police). This is common in cheque bounce cases (Section 138 NI Act), defamation cases, and certain civil-dispute-turned-criminal matters. In these cases, the complainant is the "owner" of the prosecution — they must actively participate or the case cannot proceed effectively.

Police case (FIR + chargesheet): The complainant reported to the police, who registered an FIR, investigated, and filed a chargesheet. The prosecution is now the state's — conducted by the Public Prosecutor or the Assistant Public Prosecutor. The complainant is typically a prosecution witness, not the prosecutor. Even if the complainant disappears, the state can continue the prosecution on its own.

This distinction determines everything that follows. Section 256 BNSS — the provision that allows dismissal for complainant's non-appearance — applies specifically to private complaint summons cases, not to police cases.

What to do next: check the origin of the criminal case — was it a private complaint filed directly before the Magistrate, or an FIR filed at a police station? This determines which analysis applies to your situation.

2. Relevant Statutory Provisions

3. Private Complaint Cases — How They Work

In a private complaint case, the complainant (also called the "complainant" throughout the proceedings) is both:

• The person who initiated the proceedings, and
• The principal witness for the prosecution.

The Magistrate takes cognisance of the offence on the basis of the complaint. The complainant must:

• Appear before the Magistrate when summoned.
• Give evidence in court (examination-in-chief, cross-examination).
• Be present at critical stages.

Without the complainant's active participation, the private complaint case cannot proceed to a meaningful conclusion. The Magistrate cannot examine witnesses who do not appear; cannot record evidence from an absent complainant; and must eventually take a view on what to do with a prosecution that has no prosecutor present.

Examples of common private complaint cases in Mumbai:

• Section 138 NI Act (cheque bounce) — filed directly by the payee.
• Section 499/500 IPC / Section 356 BNS (defamation).
• Section 420 IPC / Section 318 BNS (cheating) in some cases filed by the victim directly.
• Matrimonial offences filed by the wife directly before the Magistrate.

4. Section 256 BNSS — The Default Dismissal Provision

Section 256 BNSS 2023 (formerly Section 249 CrPC) provides:

"If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any 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 opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case."

Breaking this down:

• "The Magistrate shall acquit" — the default outcome where the complainant does not appear is acquittal of the accused. However:
• "Unless... he thinks it proper to adjourn" — the Magistrate has discretion to adjourn rather than acquit.
• "Represented by a pleader" — if the complainant is represented by an advocate, the Magistrate can proceed without the complainant's physical presence.

Key practical points:

• Section 256 BNSS does not create an automatic right to dismissal or acquittal — it gives the Magistrate discretion.
• The Magistrate may keep adjourning despite the complainant's absence.
• The accused must actively apply for action under Section 256 BNSS — passive waiting may result in endless adjournments.

5. What "Discretion" Means in Section 256 BNSS Practice

Mumbai Magistrates exercise their Section 256 BNSS discretion in a specific way:

First non-appearance: the Magistrate typically adjourns and issues notice to the complainant.

Second non-appearance: the Magistrate may issue a bailable warrant to the complainant to ensure appearance.

Third / sustained non-appearance: if the complainant consistently fails to appear despite warnings and warrants, the Magistrate is more likely to act under Section 256 BNSS — either dismissing the case, discharging the accused, or acquitting them.

The accused's role: the accused should file a formal application at each successive non-appearance, requesting the Magistrate to exercise the Section 256 BNSS power. Passive silence by the defence allows the court to keep adjourning indefinitely.

6. The Accused's Active Strategy in Private Complaint Cases

The accused is not passive when the complainant stops appearing. Specific proactive steps:

Step 1 — File a Section 256 BNSS application: At each date when the complainant does not appear, file a formal written application to the Magistrate requesting:

• That the matter be treated as one of default under Section 256 BNSS.
• That the accused be acquitted / the case be dismissed.
• That if the Magistrate is not minded to dismiss, the complainant be issued with a bailable warrant.

Step 2 — Seek adverse inference (if prosecution case stage): If the case is at the trial stage and the complainant is listed as a prosecution witness who fails to appear, apply for an adverse inference under Section 114(g) BSA 2023.

Step 3 — Pursue settlement and quashing: If the non-appearance signals a settlement, approach the complainant or their advocate and execute a settlement deed. File a joint quashing petition before the Bombay HC.

Step 4 — If NI Act case: File a compounding application under Section 147 NI Act if the cheque amount has been paid or can be paid.

7. Police / FIR Cases — Complainant's Non-Appearance as a Witness

In a police case, the prosecution is conducted by the state. The complainant is a prosecution witness — their evidence is important but they do not control the prosecution.

When the complainant-witness fails to appear for examination:

• The Public Prosecutor continues to represent the state.
• The prosecution can examine other witnesses who do appear.
• The prosecution can apply for a bailable warrant against the absent complainant-witness.
• If the complainant-witness persistently fails to appear, the prosecution may close its evidence without them — weakening its case.
• The prosecution cannot be terminated merely because the complainant-witness is absent.

What this means for the accused: In a police case, the complainant's non-appearance does not trigger Section 256 BNSS and does not create an automatic right to dismissal. However, it does significantly weaken the prosecution's evidence — and this weakness can be exploited at trial through:

• An adverse inference application.
• A "no case to answer" submission at the close of prosecution evidence.
• Arguments in final submissions that the prosecution failed to examine its key witness.

8. Bailable Warrant Against the Complainant-Witness

Where the complainant is a prosecution witness in a police case who fails to appear for examination, the prosecution can apply to the court for a bailable warrant against the complainant-witness to compel attendance.

The accused's interest in the bailable warrant: From the accused's perspective, whether the prosecution seeks a bailable warrant against the complainant-witness is significant:

• If the prosecution does NOT seek a warrant and simply skips the complainant-witness → adverse inference is available.
• If the prosecution DOES seek a warrant and the witness is compelled to appear → cross-examination becomes possible.
• Either outcome serves the defence — absent witness = adverse inference; present witness = cross-examination opportunity.

What to do: monitor whether the prosecution applies for a warrant against the absent complainant-witness. If they do not, file the adverse inference application promptly.

9. Adverse Inference When Complainant-Witness Is Absent

Section 114(g) BSA 2023 (formerly Section 114 Illustration (g) IEA) provides that the court may presume:

"That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

Where the prosecution:

• Has the complainant-witness available (or could compel attendance by warrant).
• Chooses not to examine them.
• Closes its evidence without the complainant-witness's testimony.

The accused can formally apply to the court to draw an adverse inference — specifically, to presume that the complainant-witness's evidence, if produced, would have been unfavourable to the prosecution.

When to file the adverse inference application: At the stage when the prosecution formally closes its evidence without having examined the complainant-witness despite their absence being noted on the record.

This inference, combined with the "no case to answer" submission, can significantly undermine the prosecution's case where the complainant-witness was their key evidence.

10. The Settlement Signal — Converting Non-Appearance into Quashing

In Mumbai criminal practice, a complainant who stops attending hearings most commonly does so because:

1. A private settlement has been reached and neither party wants to formalise it.
2. The complainant has lost interest in the case (financial dispute resolved informally).
3. The complainant has moved away, is ill, or faces practical difficulties attending.
4. The complainant is experiencing pressure not to appear.

In scenarios 1 and 2, the non-appearance is a settlement signal — an opportunity to convert the practical end of the dispute into a formal legal closure through a joint quashing petition under Section 528 BNSS before the Bombay HC.

Why formal closure is better than relying on absence:

• A Section 256 BNSS dismissal can be restored by the complainant if they later change their mind.
• A Bombay HC quashing order is permanent — the proceedings are extinguished.
• A quashing order is more beneficial for records (police clearance certificate, employment, visa purposes).

How to pursue: approach the complainant or their advocate, confirm the settlement position, execute a settlement deed, and file a joint quashing petition.

11. The Joint Quashing Route After Non-Appearance

Where the complainant has stopped appearing and is willing to support quashing:

1. Execute a comprehensive settlement deed covering all outstanding terms.
2. Obtain the complainant's supporting affidavit confirming voluntary non-prosecution.
3. File a joint petition under Section 528 BNSS before the Bombay HC.
4. Annex the settlement deed, affidavit, and cause number of the pending case.
5. HC satisfies itself of the genuineness of the settlement.
6. HC passes a quashing order — permanently extinguishing the proceedings.

This is the most complete and permanent form of closure — superior to relying on Section 256 BNSS dismissal alone.

12. Restoration of a Dismissed Case — What the Complainant Can Do

Where the Magistrate dismisses a private complaint case under Section 256 BNSS for complainant non-appearance, the complainant can apply to restore the case by:

• Filing an application for restoration before the same Magistrate.
• Showing sufficient cause for the non-appearance.
• Demonstrating that they intend to prosecute the complaint.

What "sufficient cause" means: Courts have restored cases where the complainant shows illness, family emergency, communication failure, or other genuine reasons for non-appearance. Courts are generally somewhat reluctant to permanently dismiss cases on procedural grounds alone if the complainant comes forward promptly.

What the accused should do if a restoration application is filed:

• Oppose the restoration application vigorously.
• If any settlement has been paid or actions taken in reliance on the dismissal, highlight this prejudice.
• If the complainant's reasons for restoration are insufficient, point this out.
• If the accused has already obtained a HC quashing order, the restoration application is moot.

13. How the Accused Should Respond to a Restoration Application

Opposing restoration effectively:

• Point to the specific number of dates the complainant missed without explanation.
• Highlight the prejudice suffered by the accused during the period of non-appearance.
• If any concession or payment was made in reliance on the non-appearance signalling settlement, document this.
• Argue that the complainant's explanation for non-appearance is insufficient.
• Cite any settlement deed or correspondence that shows the matter was treated as concluded.

The HC route: If the Magistrate restores the case despite valid opposition, a revision petition before the Sessions Court or Bombay HC challenging the restoration order is available.

14. Summons Cases vs. Warrant Cases — The Section 256 BNSS Distinction

Section 256 BNSS applies specifically to summons cases — cases where the procedure is the summons case procedure (typically offences punishable with fine or up to two years' imprisonment, and private complaints).

In warrant cases (more serious offences, typically with punishment of more than two years), the procedure is different. The complainant's non-appearance does not trigger Section 256 BNSS — the court's powers to deal with absent witnesses are governed by other provisions.

Why this matters: A cheque bounce case (Section 138 NI Act, punishment up to 2 years) tried as a summons case: Section 256 BNSS applies directly.

A cheating case (Section 318 BNS, punishment up to 7 years) tried as a warrant case: Section 256 BNSS does not directly apply; the absent complainant-witness situation is governed by general witness summoning and warrant provisions.

15. What If the Complainant Dies During Proceedings?

Section 256 BNSS also covers the situation where the complainant dies — in private complaint cases where the complainant has died:

• The legal heirs of the complainant can apply to continue the prosecution.
• If no legal heir applies, the Magistrate can dismiss the case under Section 256 BNSS.
• The Magistrate exercises the same discretion as for absence — adjournment or dismissal.

In police cases, death of the complainant does not affect the state's right to continue prosecution.

16. Latest Legal Position (2023–2026)

The BNSS 2023 replaced the CrPC from July 1, 2024. Section 256 BNSS mirrors the former Section 249 CrPC in substance. All prior Supreme Court and Bombay HC case law on complainant non-appearance and Section 249 CrPC applies directly under Section 256 BNSS.

The NI Act provisions remain unchanged — Section 138 cheque bounce cases continue to be among the most common contexts for complainant non-appearance and subsequent settlement-based quashing.

17. Landmark Supreme Court Judgments

• Shanti Bhushan v. State, (1973) 1 SCC 554 — Magistrate's discretion under Section 249 CrPC (now Section 256 BNSS); whether to adjourn or dismiss; factors considered.
• K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 — private complaint procedure; complainant's duty to appear; Section 249 CrPC application.
• Meters and Instruments Pvt. Ltd. v. Kanchan Mehta, (2018) 1 SCC 560 — NI Act compounding and settlement; Section 147 NI Act; complainant non-appearance context.
• Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd., (2001) 7 SCC 401 — NI Act private complaint; personal appearance; advocate appearance in lieu.
• B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 — settlement-based quashing; HC's power to quash even non-compoundable offences where settlement exists.

18. Bombay High Court Position

The Bombay HC has:

• Upheld Section 256 BNSS (formerly Section 249 CrPC) dismissals where the complainant failed to appear repeatedly and showed no cause.
• Directed Magistrates to act under Section 256 BNSS where complainants have been absent for multiple dates without explanation.
• Accepted joint quashing petitions in private complaint cases where the complainant's non-appearance signals settlement.
• Set aside restoration orders where the complainant's explanation for absence was inadequate.
• Directed adverse inferences against the prosecution where complainant-witnesses in police cases were not examined despite availability.

19. Stage-Specific Strategy Based on Case Status

20. Documents to Obtain and Maintain

• Case order sheet showing each date the complainant was absent (certified copy).
• Any notice / warrant issued to the complainant on each date.
• Section 256 BNSS / adverse inference applications filed.
• Any communications with the complainant or their advocate indicating settlement intent.
• Settlement deed (if executed).
• For joint quashing: complainant's supporting affidavit, settlement deed.

21. Timeline of Key Steps

22. Costs Involved

• Section 256 BNSS application: nominal court fee; advocate's drafting fee.
• Adverse inference application: nominal.
• Joint quashing petition at Bombay HC: nominal court fee; HC advocate's professional fee.
• NI Act compounding: settlement amount + advocate fees.

23. Common Mistakes When Complainant Is Absent

• Passively waiting for the Magistrate to dismiss the case without filing a Section 256 BNSS application.
• Not distinguishing between a private complaint case and a police case — applying the wrong strategy.
• Missing the settlement signal — not approaching the complainant to formalise the settlement and pursue joint quashing.
• Not filing the adverse inference application at the close of prosecution evidence in police cases.
• Not opposing the restoration application vigorously if the complainant later applies to restore.
• Relying on Section 256 BNSS dismissal alone without pursuing HC quashing — leaving open the risk of restoration.

24. Risks and Limitations

• Section 256 BNSS dismissal can be restored — it is not permanent protection.
• The Magistrate may keep adjourning instead of dismissing — the accused must actively push for Section 256 BNSS action.
• In police cases, complainant absence does not terminate the prosecution — the state continues.
• The adverse inference is discretionary — the court may not draw it even where the witness is absent.
• A joint quashing petition requires the complainant's genuine cooperation — if they are absent due to illness or travel, they may not cooperate with the formal process.

25. Practical Legal Advice

When the complainant stops attending hearings, the accused must shift from passive participation to active legal strategy. In private complaint cases, file the Section 256 BNSS application at every date of absence — this creates a record and eventually compels the Magistrate to act. In police cases, monitor the prosecution's response to the absent witness and prepare the adverse inference application.

Most importantly: if the non-appearance signals settlement, pursue it formally and urgently. A joint quashing petition with the HC is infinitely more secure than relying on passive dismissal.

For a retired judge's assessment of how the complainant's non-appearance affects your Mumbai criminal case and what you should do next, consult at: https://aapkalegaladvice.com/lawyer/criminal-lawyers-in-mumbai/

26. Litigation Strategy

• Identify case type first (private complaint vs. police case) — this determines everything.
• In private complaint cases: file Section 256 BNSS applications actively; document every absence.
• In police cases: prepare adverse inference application; build "no case to answer" submission around the absent witness.
• Pursue settlement proactively — approach complainant's advocate as soon as non-appearance pattern is established.
• Execute settlement deed and file HC quashing petition simultaneously.
• Oppose any restoration application vigorously with evidence of prejudice.

27. Step-by-Step Action Plan

• At each date of complainant absence: file written Section 256 BNSS application; ensure it is on the record.
• After 2–3 non-appearances: brief advocate to argue the application forcefully; seek Magistrate's action.
• Simultaneously: approach complainant or their advocate about settlement.
• If settlement agreed: execute deed; file joint HC quashing petition immediately.
• At close of prosecution evidence (police case): file adverse inference application.
• If Section 256 BNSS dismissal granted: obtain certified copy; pursue HC quashing for permanent closure.
• If restoration application filed: oppose immediately; file revision if restoration is wrongly granted.

28. Frequently Asked Questions

Q1. What happens if the complainant does not attend hearings in Mumbai? In a private complaint summons case, the Magistrate may dismiss the case, acquit, or discharge the accused under Section 256 BNSS. In a police case, the state prosecution continues regardless.

Q2. Will the case automatically be dismissed if the complainant doesn't appear? Not automatically. Section 256 BNSS gives the Magistrate discretion — they may adjourn instead of dismissing. The accused must actively file applications to trigger dismissal.

Q3. What is Section 256 BNSS? The provision that allows a Magistrate to acquit or discharge the accused in a private complaint summons case when the complainant fails to appear.

Q4. Does Section 256 BNSS apply in police cases? No — Section 256 BNSS applies to private complaints tried as summons cases. In police cases, the state continues the prosecution independently.

Q5. What is the difference between a private complaint and a police case? A private complaint is filed directly by the complainant before the Magistrate. A police case begins with an FIR at the police station, followed by police investigation and a chargesheet. In a police case, the state owns the prosecution.

Q6. Can the complainant restore the case after it is dismissed? Yes — the complainant can apply to restore the case by showing sufficient cause for non-appearance. The accused should oppose this application.

Q7. What should the accused do when the complainant stops appearing? In private complaints: file Section 256 BNSS applications at every absence date. In police cases: prepare adverse inference application. In both: pursue settlement and joint quashing.

Q8. What is an adverse inference and when does it apply? Under Section 114(g) BSA 2023, the court may presume that evidence withheld by a party would have been unfavourable to them. Where the prosecution fails to examine the complainant-witness despite availability, an adverse inference is appropriate.

Q9. How do I convert the complainant's non-appearance into a formal case closure? Execute a settlement deed with the complainant and file a joint quashing petition under Section 528 BNSS before the Bombay HC. This provides permanent closure — superior to Section 256 BNSS dismissal.

Q10. Can I get the case dismissed at the Bombay HC if the complainant is absent? In private complaint cases with a pattern of absence and a settlement background, the Bombay HC can quash proceedings under Section 528 BNSS. The joint application route is the most direct.

Q11. What if the complainant's advocate still appears even though the complainant is absent? Section 256 BNSS provides that if the complainant is represented by a pleader, the Magistrate can proceed without the complainant's physical presence. The case may not be dismissible in this scenario.

Q12. Can NI Act cheque bounce cases be closed if the complainant stops appearing? Yes — through Section 147 NI Act compounding (formal settlement with court order) or Bombay HC quashing. Ensure the cheque amount and interest are paid as part of the settlement.

Conclusion

The complainant's non-attendance at hearings in a Mumbai criminal case is a significant development — but its consequences depend entirely on whether the case is a private complaint or a police case, and what action the accused takes in response.

In private complaint cases, Section 256 BNSS provides a powerful route to dismissal — but only if the accused actively invokes it. In police cases, the state prosecution continues regardless, though the absent complainant-witness significantly weakens the prosecution's evidence. In all cases, a complainant's non-appearance is most productively treated as a settlement signal — an opportunity to formalise the end of the dispute through a joint quashing petition before the Bombay HC that provides permanent, irrevocable closure.

Do not wait passively. File the applications, pursue the settlement, and convert the complainant's absence into a formal legal conclusion.

For a retired judge's assessment of what the complainant's non-appearance means for your Mumbai criminal case and the best strategy to pursue, consult at: https://aapkalegaladvice.com/lawyer/criminal-lawyers-in-mumbai/