The Allahabad High Court has reaffirmed that procedural lapses in cheque dishonour cases must not result in irreversible dismissal when the complainant’s absence stems from lack of notice, not deliberate neglect. This ruling restores the complainant’s right to pursue justice under Section 138 of the Negotiable Instruments Act, emphasizing procedural fairness over technical dismissal.
Background & Facts
The Dispute
The applicant, Mohd. Raufurrhman, filed a criminal complaint under Section 138 of the Negotiable Instruments Act against opposite party no.2 for dishonour of two cheques issued as security for a loan of Rs.7,00,000. Each cheque was for Rs.3,50,000 and was presented for payment, but both were returned unpaid due to insufficient funds. The complaint was registered as Complaint Case No.1636 of 2019 at Police Station Kotwali Nagar, District Gonda.
Key Facts
- The two cheques were issued on or about the date of the loan transaction in 2019
- The cheques were presented for encashment in late 2019 and dishonoured in December 2019
- Legal notice under Section 138 NI Act was issued and received by the drawer
- Complaint was filed before the Civil Judge (JD)/FTC, New, Gonda on 15.01.2020
- The court recorded statements under Sections 200 and 202 Cr.P.C. and issued summons to the accused
- The first general date fixed for hearing was 21.06.2020
- No hearing occurred between 21.06.2020 and 27.09.2020
- On 27.09.2020, the applicant did not appear
- On 23.12.2021, the presiding officer was absent; next date fixed for 25.03.2022
- The applicant did not appear on 25.03.2022, 25.05.2022, or 29.07.2022
- The case was transferred to the Fast Track Court, New, Gonda
- The next date was fixed for 19.01.2023
- On 19.01.2023, the complaint was dismissed for non-appearance of the complainant
- The applicant filed a criminal revision before the Sessions Judge, Gonda, which was dismissed on 13.01.2026
Procedural History
- 15.01.2020: Complaint Case No.1636 of 2019 filed before Civil Judge (JD)/FTC, New, Gonda
- 21.06.2020: First general date fixed for hearing
- 27.09.2020: Applicant absent; next date fixed
- 23.12.2021: Presiding officer absent; next date fixed for 25.03.2022
- 25.03.2022, 25.05.2022, 29.07.2022: Applicant absent on all dates
- Unknown date (prior to 19.01.2023): Case transferred to Fast Track Court, New, Gonda
- 19.01.2023: Complaint dismissed by Fast Track Court for non-appearance
- 13.01.2026: Criminal Revision No.59 of 2026 dismissed by Sessions Judge, Gonda
- 05.03.2026: Application under Section 482 Cr.P.C. filed before Allahabad High Court, Lucknow Bench
- 13.05.2026: Hearing concluded; judgment delivered
Relief Sought
The applicant sought setting aside of the orders dated 19.01.2023 and 13.01.2026, restoration of Complaint Case No.1636 of 2019, and direction to the trial court to proceed with the trial expeditiously without unnecessary adjournments.
The Legal Issue
The central question was whether a criminal complaint under Section 138 of the Negotiable Instruments Act can be dismissed solely on account of the complainant’s non-appearance on a single date, when the absence is attributable to lack of knowledge regarding the transfer of the case to a different court.
Arguments Presented
For the Appellant/Petitioner
Learned counsel for the applicant argued that the applicant had no knowledge of the transfer of the case to the Fast Track Court, and therefore could not be expected to appear on 19.01.2023. He emphasized that the applicant had appeared on multiple earlier dates and had no intention to abandon the case. He submitted that dismissal at this stage would cause irreparable financial loss, as the applicant had suffered a loss of Rs.7,00,000. He further undertook that the applicant would not seek unnecessary adjournments and would cooperate fully in the trial.
For the Respondent/State
The Additional Government Advocate contended that the applicant had repeatedly failed to appear on multiple dates over a period of more than two years, demonstrating a clear pattern of negligence. He argued that the dismissal was a legitimate exercise of judicial discretion under Section 256 Cr.P.C. and that the applicant had forfeited his right to prosecute by his own conduct.
The Court's Analysis
The Court examined the procedural history and noted that while the applicant had missed several dates, the critical dismissal occurred on 19.01.2023 - a date on which the case had been transferred to a different court without any formal intimation to the complainant. The Court observed that the complainant is not a party to the administrative transfer of cases and cannot be held responsible for lack of notice.
"Applicant is the complainant and he had no knowledge of transfer of his case to another court, therefore, he could appear on the date when the case was dismissed."
The Court distinguished this case from those where the complainant wilfully avoids appearance or repeatedly ignores notices. It held that Section 143(3) of the Negotiable Instruments Act mandates expeditious disposal of cases, but this cannot be achieved by penalizing a complainant for administrative oversight. The Court emphasized that the purpose of Section 138 NI Act is to uphold the credibility of financial instruments, and dismissal on technical grounds defeats this objective.
The Court further noted that the applicant had taken the initiative to file the complaint, appeared on several occasions, and had no history of dilatory tactics. The dismissal, therefore, was not a consequence of contumacious conduct but of institutional failure.
The Verdict
The applicant succeeded. The High Court set aside the orders dated 19.01.2023 and 13.01.2026, restored Complaint Case No.1636 of 2019 to its original number, and directed the applicant to appear before the trial court within ten days from the date of judgment. The trial court was directed to proceed expeditiously under Section 143(3) of the Negotiable Instruments Act, without granting unnecessary adjournments to either party.
What This Means For Similar Cases
Complainant’s Non-Appearance Due to Administrative Oversight Is Not Fatal
- Practitioners must argue that dismissal under Section 256 Cr.P.C. requires proof of wilful neglect, not mere absence due to lack of notice
- Courts must verify whether the complainant received actual notice of transfer, adjournment, or change of venue
- A single dismissal on non-appearance cannot stand if the complainant has otherwise demonstrated active engagement
Restoration Is the Presumptive Remedy in Section 138 Cases
- Where the complainant has initiated proceedings and suffered financial loss, restoration should be the default remedy unless there is clear evidence of mala fide delay
- Courts must balance procedural compliance with the substantive objective of Section 138 NI Act - protecting the payee’s right to enforce payment
- Applications under Section 482 Cr.P.C. remain viable tools to correct manifest injustice in cheque dishonour cases
Procedural Fairness Trumps Technical Compliance
- The burden is on the court system to ensure parties are informed of changes in venue or date
- Complainants in financial cases are often laypersons; courts must adopt a liberal construction of procedural rules
- Failure to notify a complainant of transfer constitutes a breach of natural justice and renders dismissal invalid
