SACHIN MAVIversusSTATE OF U.P. AND ANR.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 APPLICATION U/S 378 No. - 110 of 2019

Sachin Mavi
                                                               .....Applicant(s)
                                    Versus
State Of U.P. And Anr.
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)                :    Manish Kumar Tripathi
Counsel for Opposite Party(s)           :    Ashish Kumar Pandey, G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Sri Arpit Pal, holding brief of Sri Manish Kumar Tripathi, learned
counsel for the appellant and learned AGA for the State.

2. Learned counsel for the opposite party no. 2 has not appeared even in the
revised call.

3. This appeal has been preferred against the judgment and order dated
30.04.2019, passed by Additional Civil Judge (Senior Division) Ghaziabad
in Complaint Case No.359 of 2017, under Section 138 of N.I. Act, P.S.-
Sahibabad, District- Ghaziabad, whereby the opposite party No.2 has been
acquitted.

4. Learned counsel for the appellant has submitted that the complaint under
Section 138 of the N.I. Act was filed by the appellant/complainant. The
appellant had been regularly appearing before the court, which is clearly
reflected in the order sheet. However, he was absent on two dates due to lack
of knowledge regarding the transfer of his case to another court. The learned
trial court dismissed the complaint on the ground that, despite repeated calls,
the complainant remained absent. Learned counsel for the appellant has
submitted that the learned trial court has failed to consider that the
appellant/complainant had been regular in his appearance before the court,
and the said fact is very much clear from the order sheet. It was the mistake
of the appellant's counsel that he could not appear in court when his case
was called out. It is trite that a party should not suffer due to the mistake of
his counsel.
                                                                                               A378 No. 110 of 2019
                                                                     2


                                    5. Learned A.G.A. for the State opposed the prayer and submitted that it was
                                    the duty of the complainant or his counsel to be present in court at the time
                                    when the case was called.

                                    6. On the basis of evidence adduced by the complainant under Sections 200
                                    and 202 Cr.P.C., the learned Additional Civil Judge (S.D.), Court No.3,
                                    Ghaziabad had summoned the accused to face trial for the offence under
                                    Section 138 of Negotiable Instruments Act. The case was thereafter fixed for
                                    the appearance of the accused.

                                    7. Having considered the facts and circumstances of the case, this Court
                                    finds that the power under Section 256 Cr.P.C. is to be exercised judiciously
                                    and not in a mechanical manner, where the case is at a stage the presence of
                                    the complainant is not essential. Dismissal of the complaint for non
                                    appearance would not be justified.

                                    8. In the present case, the matter was fixed for appearance of the accused and
                                    not for recording of evidence or any substantive proceeding requiring the
                                    presence of the complainant. The order of dismissal appears to have been
                                    passed without due application of mind to the stage of the case.

                                    9. The appellant has explained the reasons for his absence in the court on the
                                    date of passing of the impugned order. In view of the above discussions the
                                    impugned order cannot be sustained and is liable to the set aside.

                                    10. Accordingly, the criminal appeal is allowed. The order dated 30.04.2019
                                    passed by the learned Additional Civil Judge (S.D.) Court No.3, Ghaziabad,
                                    under Section 256 Cr.P.C. is hereby set aside.

                                    11. The matter is remanded to the Court concerned to proceed with the case
                                    in accordance with law from the stage at which it was dismissed.

                                    12. The parties are directed to appear before the Court below on 20.04.2026.
                                    The trial court shall make all endeavours to decide the case on merits.

                                    March 12, 2026
                                    P. Pandey
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad