Disposed

Noor Hasan v. State of U.P. and Another

Allahabad HC3 Jan 2025C372/722/2024

Case brief

AI extract

What is this about?

Appeal against acquittal of the accused under Section 256 Cr.P.C. in a Section 138 NI Act complaint dismissed for complainant's non-appearance due to illness. The High Court held discretion must be exercised judicially, not mechanically, and remanded for restoration and fresh trial.

What did the court decide?

Impugned order dated 27.09.2024 set aside; complaint restored to original number and trial directed afresh with opportunity to both parties to adduce evidence.

Noor Hasan vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2025)

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HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL U/S 372 CR.P.C. No. - 722 of 2024

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Noor Hasan

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.....Appellant(s)

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	Versus
State of U.P. and Another			.....Re	spondent(s)
Counsel for Appellant(s)	: Arvind Kumar,	Kumar Virendra	Srivastava, Singh	Sampanna
Counsel for Respondent(s)	: G.A.

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Court No. - 54

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HON'BLE MRS. VANI RANJAN AGRAWAL, J.

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Heard learned counsel for the appellant and learned A.G.A. for the State respondent no.1. However, none has put in appearance on behalf of the respondent no.2 even in the revised call.

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This criminal appeal has been filed challenging the judgment and order dated 27.09.2024 passed by the learned Additional Civil Judge (Junior Division), Court No.4/Judicial Magistrate, District- Etawah in Complaint Case No.240/2019 (Noor Hasan Vs. Mohammad Shahid), under Section 138 N.I. Act, Police Station- Kotwali, District- Etawah whereby the opposite party no.2 has been acquitted.

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It is submitted that the complaint was filed under Section 138 of Negotiable Instrument Act, Police Station- Kotwali District- Etawah, which was registered as Complaint Case No.240 of 2019 (Noor Hasan Vs. Mohammad Shahid), in which the statement of appellant under Section 200 Cr.P.C., was recorded. Learned Judicial Magistrate after hearing the appellant and perusing the material available on record, summoned the accused for trial under Section 138 of N.I. Act.

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Learned Magistrate in absence of the appellant or his representing counsel, dismissed the complaint under Section 256 Cr.P.C. The impugned order was passed in absence of both the parties. Since the amount of Rs.3,72,790.66/- has been involved in this case, learned Magistrate must have taken a less sharp step than it had taken in this case. He should have adopted some alternative steps instead of dismissing the complaint.

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C372 No. 722 of 2024

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Learned counsel for the appellant submits that the complaint was fixed for 27.09.2024, however, on the date of dismissal, the complaint could not appear before the Court for bona fide reason of his illness. It is further submitted that the complainant had been regularly prosecuting the case through his counsel and absence was neither deliberate nor intentional. It is further submitted that dismissal under Section 256 Cr.P.C., results in acquittal and, therefore, the Magistrate ought to have taken a lenient view and should have afforded the opportunity to prosecute the matter on merits.

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Learned A.G.A. for the State vehemently opposed the appeal, but left the matter to the discretion of the Court.

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After hearing the parties, the Court has perused the record.

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The present case was filed under Section 138 N.I. Act, which is a summon trial case and in a summon trial case, non-appearance or death of the complainant may cause certain consequences which have been given in Section 256 Cr.P.C., which provides for dismissal of complaint for nonappearance by the complainant, which reads as under:-

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"256. Non-appearance or death of complainant. - (1) 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;

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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.

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(2) The provisions of Sub-Section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

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I have considered the above submissions and perused the material on record. Section 256 Cr.P.C., no doubt empowers the Court to acquit the accused on account of non-appearance of complainant, however, this discretion has to be exercised judicially and not mechanically, the Hon'ble Apex Court has repeatedly emphasized that where the complainant has

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C372 No. 722 of 2024

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shows diligence and the absence is neither wilful nor indicative of abandonment of prosecution. The complaint should not be thrown out on technical grounds, particularly in offences under Section 138 N.I. Act or other summons trial matter.

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The impugned order has been passed in absence of both the parties. The opposite party/accused person was also not present on the date of passing of impugned order. In such condition, the learned trial court ought to have exercised its discretion in favour of continuing the trial instead of acquitting the accused on technical grounds.

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In the interest of justice and in order to ensure that the matter is decided on merits, the impugned order dated 27.09.2024 is set aside. The case is accordingly, remanded to learned trial court with the direction to restore the complaint to its original number and proceed the trial afresh by granting reasonable opportunities to both the parties to adduce evidence.

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Accordingly, the appeal is disposed of .

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December 5, 2025 Pravesh Mishra

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(Mrs. Vani Ranjan Agrawal,J.)

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Digitally signed by :- PRAVESH KUMAR MISHRA High Court of Judicature at Allahabad

Noor Hasan v. State of U.P. and Another

Case brief

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Noor Hasan v. State of U.P. and Another

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