Restoration of complaint for non-prosecution where proceedings had substantially progressed and absence was not deliberate.

A complaint under Section 138 of the Negotiable Instruments Act that has substantially progressed on merits should not be dismissed for default where the complainant's absence is not deliberate. Here, the accused had appeared, the complainant had been cross-examined, and the accused's statement under Section 313 CrPC had been recorded, while the accused later remained unavailable despite warrant process. In these circumstances, the dismissal for non-prosecution was treated as inappropriate, and restoration of the complaint was ordered on payment of costs to protect the complainant's accrued procedural right.

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Issues: Whether the order dismissing the complaint for default and non-prosecution was liable to be set aside and the complaint restored.

Analysis: The complaint under Section 138 of the Negotiable Instruments Act, 1881 had already progressed substantially, including appearance of the accused, cross-examination of the complainant and recording of the accused's statement under Section 313 of the Code of Criminal Procedure, 1973. The accused thereafter remained absent and could not be secured despite issuance of warrant, while the complainant's absence was treated as not intentional. In these circumstances, dismissal of the case for default was found inappropriate, and restoration was considered necessary to preserve the complainant's accrued procedural right, subject to payment of costs.

Conclusion: The issue was answered in the affirmative and the complaint was ordered to be restored, in favour of the appellant.

Ratio Decidendi: A complaint that has substantially proceeded on merits should not be terminated for non-prosecution where the complainant's absence is not deliberate and restoration is required to prevent loss of the complainant's accrued right.

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