HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 378 No. - 186 of 2024 Court No. - 93 HON'BLE MRS. VANI RANJAN AGRAWAL, J. Order on Special Leave to Appeal Application 1. Heard Sri Sushil Kumar Pandey, learned counsel for the appellant, and Sri Mayank, learned counsel appearing for the respondent on the application for grant of leave to appeal as well as on the appeal. 2. The present application for grant of leave to appeal has been filed against the judgment and order dated 04.06.2024 passed by the Presiding Officer, Additional Court, Mathura in Criminal Complaint Case No. 4085 of 2019, under Section 138 of the Negotiable Instruments Act, Police Station Kotwali, District Mathura, whereby the complaint was dismissed in default under Section 256 Cr.P.C. and the accused persons were acquitted. 3. Upon hearing learned counsel for the parties and perusal of the record, this Court finds that arguable grounds are made out for grant of leave to appeal. 4. Accordingly, leave to appeal is granted. 5. The appeal is treated to have been admitted. Order on Appeal 1. This appeal has been filed by the appellant against the judgment and order dated 04.06.2024 passed by Presiding Officer Additional Judge, Mathura in Criminal Complaint Case No.4085 of 2019, Shri Ji Seeds Vs. M/s R.S.S. Seeds, under Section 138 of Negotiable Instruments act, Police Station- Kotwali, District- Mathura. 2. Heard Sri Sushil Kumar Pandey, learned counsel for the appellant and Sri Mayank, learned counsel for the respondent. 3. According to the prosecution case, on 26.11.2021, this appeal has been preferred against the judgment and order dated 04.06.2024, passed by Versus Counsel for Applicant(s) : Sushil Kumar Pandey Counsel for Opposite Party(s) : G.A., Mayank Shri Ji Seeds .....Applicant(s) State of U.P. and Another .....Opposite Party(s) presiding officer, Additional Court Mathura in Case No.4085 of 2019, Police Station- Kotwali, District- Mathura, whereby the complaint was dismissed in absence of complainant under Section 256 Cr.P.C. and the accused was acquitted. 4. From the record, it transpires that the complaint under Section 138 of the Negotiable Instruments Act, instituted by the complainant/appellant alleging dishonour of cheque amounting to Rs. 6,60,000/-, issued by the opposite party No.2 in favour of the complainant. After summoning of the accused person, the statements of the complainant under Section 200 and 202 Cr.P.C. has recorded and the allegations made in the complaint were fully supported therein. 5. It further appears from the record that mediation proceedings were also undertaken and the matter was referred to the Mediation Center, however, the mediation proceeding failed and the case was remitted back to the trial court. Thereafter, on 13.11.2022, the complainant produced himself for evidence. His cross-examination was conducted on two dates, i.e. 29.03.2023 and 12.12.2023 by the accused side. 6. Thereafter, the matter was fixed for remaining prosecution evidence. However, on certain subsequent dates, i.e. 15.03.2024 and 21.05.2024, the complainant could not appear before the trial court and no further evidence was produced as a consequence whereof the opportunity of the complainant to adduce further evidence was closed. Thereafter, statement of the accused under Section 313 Cr.P.C. was also recorded. Subsequently, when the complainant again remained absent at the stage of arguments, the learned trial court proceeded to dismiss the complaint under Section 256 Cr.P.C. and acquitted the accused persons. 7. Assailing the impugned order, learned counsel for the appellant submitted that the complainant had been diligently prosecuting the complaint since the year 2019 and had regularly appeared before the Court on almost every date. It has been further submitted that after recording of her statement, her counsel had assured her that he would take care of the proceedings and her personal presence would not be required on each date. 8. It has also been contended that during the relevant period, the complainant's sister-in-law met with a serious road accident, involving a truck and sustained grievous injuries, due to which the complainant remained occupied in attending to her and taking care of hospital related formalities. 9. Because of the aforesaid unavoidable circumstances, she could not appear before the Court on certain dates. It has further been submitted that on one occasion an adjournment application was also moved which was allowed on A378 No. 186 of 2024 2 payment of costs. 10. Learned counsel for the appellant has further argued that even after recording statement of the accused under Section 313 Cr.P.C., the learned trial court ought to have decided the matter on merits instead of dismissing the complaint in default. 11. It has also been submitted that the complainant is a lady, having several domestic responsibilities and sufficient cause for harassment was available on record. A prayer has thus been made that one more opportunity may be granted to the complainant for hearing remaining evidence and prosecuting the complaint. 12. Per contra, learned counsel appearing on behalf of the opposite party No.2, opposed the appeal and submitted that the complainant was not regularly appearing before the trial court and, therefore, the learned court below has rightly dismissed the complaint in exercise of power under Section 256 Cr.P.C. 13. Having considered the submissions advanced by the learned counsels for the parties and upon perusal of impugned order as well as the material available on record, this Court finds that the complaint case pertains to the year 2019 and the complainant had participated in the proceedings for a substantial period. Her evidence has already been recorded and cross- examination was also undertaken by the defence side. 14. The absence of complainant on two subsequent dates has been satisfactorily explained in the memorandum of appeal. 15. This Court is of the considered opinion that matters arising out of Section 138 of the Negotiable Instruments Act should ordinarily be decided on merits rather than being terminated on technical grounds, particularly, when the substantial proceedings have already taken place and the complainant has shown sufficient cause for her absence. The approach of the Court should be to advance substantial justice. Accordingly, the appeal deserves to be allowed. 16. The impugned judgment and order passed by the learned Presiding Officer, Additional Court, Mathura, dismissing the complaint under Section 256 Cr.P.C. and acquitting the accused persons is hereby set aside. 17. The matter is remanded back to the court concerned with a direction to restore complaint case No.4085 of 2019 to its original number and afford further opportunity to the complainant to adduce remaining evidence and prosecute the complaint. Thereafter, the learned trial court shall proceed to decide the matter expeditiously in accordance with law after providing opportunity of hearing to both the counsels. 18. It is, however, made clear that the complainant shall co-operate in early A378 No. 186 of 2024 3 conclusion of the proceeding and not shall not seek unnecessary adjournments. 19. The appeal is accordingly allowed with aforesaid direction. May 14, 2026 P. Pandey A378 No. 186 of 2024 4 (Mrs. Vani Ranjan Agrawal,J.) Digitally signed by :- PUSHPENDRA PANDEY High Court of Judicature at Allahabad