Neutral Citation No. - 2025:AHC:46280 Court No. - 77 Case :- APPLICATION U/S 378 DEFECTIVE No. - 10 of 2025 Applicant :- Mohd.Salim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Irfanul Huda,Syed Mohd. Khalid Counsel for Opposite Party :- G.A.,Manoj Kumar Srivastava With Case :- APPLICATION U/S 378 DEFECTIVE No. - 6 of 2025 Applicant :- Mohd. Salim Opposite Party :- State Of U,P. And Another Counsel for Applicant :- Irfanul Huda,Syed Mohd. Khalid Counsel for Opposite Party :- G.A.,Manoj Kumar Srivastava With Case :- APPLICATION U/S 378 DEFECTIVE No. - 7 of 2025 Applicant :- Mohd. Salim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Irfanul Huda,Syed Mohd. Khalid Counsel for Opposite Party :- G.A.,Manoj Kumar Srivastava With Case :- APPLICATION U/S 378 DEFECTIVE No. - 8 of 2025 Applicant :- Mohd. Salim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Irfanul Huda,Syed Mohd. Khalid Counsel for Opposite Party :- G.A.,Manoj Kumar Srivastava Hon'ble Manoj Bajaj,J. Applicant-complainant has filed these applications under section 378(4) Cr.P.C. seeking leave to appeal to challenge the impugned order dated 29.02.2024 passed by Additional Court (N.I. Act), Bareilly whereby his Complaint Case Nos.147/2018, 1161 of 2018, 1145 of 2018 and 1452 of 2018; titled : Mohd. Salim Vs. Rahul Gupta, under Section 138 Negotiable Instruments Act, 1881 have been dismissed. Along with the applications seeking leave to appeal, separate applications under section 5 Limitation Act, 1963 have been filed for condonation of delay of approximately ten months. Pursuant to the order dated 11.03.2025, counter affidavits on behalf of opposite party no.2 have been filed to oppose the prayer for condonation of delay in filing the application under section 378(4) Cr.P.C. Learned counsel for the complainant-applicant has argued that the cheque(s) in question amounting to Rs. 1 Lakh each issued by opposite party no.2- accused got dishonoured, and despite issuance of statutory notice, no payment was made by the accused, therefore, subject complaints were filed for his prosecution for alleged commission of offence punishable under section 138 Negotiable Instruments Act, 1881. According to him, after issuance of process against the accused, the parties had been appearing regularly before the trial Court and on 29.02.2024, the complainant or his counsel could not appear before the trial Court, whereupon the extreme order of dismissal of complaint under section 256 Cr.P.C. has been passed by the trial Court. Learned counsel has referred to the order dated 28.11.2023 and pointed out that on the said date the accused had absented and the trial Court proceeded to adjourn the case to 05.01.2024, and granted last opportunity to the complainant. Learned counsel has argued that again on 5.01.2024, the accused was absent and the case was adjourned to 8.02.2024, and finally it has been dismissed through the impugned order dated 29.02.2024 for non-prosecution. Learned counsel submits that the impugned order dated 29.02.2024 has been hastily passed by the trial Court, therefore, interference is warranted by this Court. He prays that the impugned order dated 29.02.2024 be set-aside and the complaint be revived for completion of trial. The prayer is opposed by the learned counsel for the accused who has argued that if the complainant has shown no interest in the complaint and despite granting him last opportunities, the trial Court was left with no option but to dismiss the complaint considering the conduct of the complainant. He submits that not only there was lack of interest by complainant in the pending complaints, but against the order dated 29.02.2024, the present application seeking leave to appeal has been filed after an inordinate delay of nearly 10 months. He refers to the counter affidavits and pointed out that though the certified copy of the order dated 29.02.2024 was delivered in September 2024 but the appeal has been filed in November, 2024. He prays that the appeal(s) be dismissed. Upon hearing learned counsel for the parties and considering their submissions, this Court finds that the subject cheque of Rs.1 lakh each was dishonoured in the year 2016 and after issuance of process, the accused had been attending the trial proceedings. Further, the order dated 28.11.2023 shows that though the accused was absent on the said date but on his behalf an application seeking exemption for personal appearance was moved by his counsel, whereas the complainant was neither present nor was represented by anyone. Thus, it cannot be said that the case was adjourned only because the accused was absent on the said date of hearing, because it is clear that in the absence of complainant, the proceedings in the complaint(s) could not have taken place, therefore, while granting last opportunity to the complainant, the exemption from personal appearance to the accused was granted. Similar was the position on the next date of hearing i.e. 5.01.2024 and the court again adjourned the case as the complaint was absent, and accused was exempted from personal appearance. The sequence of events would clearly show that the trial Court was fed up with the continuous absence of the complainant, therefore, considering the nature of offence which is summarily triable, the trial Court finding the case to be nearly a decade old proceeded to dismiss the complaints for non-prosecution. Even the appeals/leave to appeals have been preferred with a long delay of ten months and the explanation offered by the accused that he was not aware of the impugned decision is not acceptable as a complainant is supposed to be diligent in pursuing his case. During the course of hearing, learned counsel for the complainant- appellant is unable to refute the stand of the accused that the certified copy of the impugned order dated 29.02.2024 was delivered in September, 2024, whereas the appeal has been instituted in November, 2024. Consequently, the applications seeking condonation of delay and leave to appeal are dismissed. Order Date :- 3.4.2025 Shiv Digitally signed by :- SHIV KUMAR SHARMA High Court of Judicature at Allahabad