SHRI JI SEEDSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 APPLICATION U/S 378 No. - 186 of 2024

Shri Ji Seeds
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)                      :   Sushil Kumar Pandey
Counsel for Opposite Party(s)                 :   G.A., Mayank

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
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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
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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
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                                    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
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




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