The Court emphasized that a complaint should not be dismissed for want of prosecution if the party has made genuine efforts to appear before the Court, and that the Court should consider alternative measures before resorting to dismissal.

JUDGMENT

1. This application under Section 378 (4) of Cr.P.C. has been filed against the order dated 4/5/2016 passed by the JMFC, Gwalior in case No.4189/2013, by which the complaint filed by the applicant under Section 138 of the Negotiable Instruments Act was dismissed for want of prosecution.

2. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that the Court below failed to see that the complainant had appeared before the Trial Court on earlier occasion, but her evidence was not recorded and under these circumstances, if she could not appear on 4/5/2016, then the Court below should not have dismissed the complaint for want of prosecution. It is further submitted that in case if the complaint is restored to its original file, then the complainant shall appear on the first date which shall be fixed for recording of her evidence.

3. Heard learned counsel for the applicant.

4. The applicant has filed copies of the order-sheets of the Trial Court, according to which, by order dated 15/4/2014 the substance of accusation was read over to the respondent. On 16/5/2014 the applicant filed her affidavit under Section 145 of Negotiable Instruments Act and the case was fixed for 25/6/2014 for her cross examination. On 25/6/2014 the Presiding Officer was on leave and accordingly, the case was adjourned to 28/7/2014. On 28/7/2014 the applicant was present before the Trial Court, but since the Trial Court was busy in recording evidence in other cases, therefore, the case was adjourned to 19/8/2014. On 19/8/2014 the applicant could not appear and the case was adjourned to 22/9/2014. On 22/9/2014 the respondent himself prayed for time to pay the cheque amount and accordingly, the case was adjourned to 27/10/2014. On 27/10/2014 the respondent again sought time to pay the cheque amount and accordingly, the case was adjourned to 20/11/2014. On 20/11/2014 the applicant was present, but the counsel for the respondent sought time for cross examination of the complainant as well as for payment of money. Accordingly, the case was adjourned to 12/12/2014. On 12/12/2014, 8/1/2015, 24/1/2015 the applicant could not appear and her presence was exempted. On 10/2/2015 the Presiding Judge was on leave and accordingly, the case was fixed on 26/2/2015. On 26/2/2015, 21/4/2015, 14/5/2015 the applicant was present, but her evidence was not recorded at the request of counsel for the parties. Thereafter, on 10/7/2015 the applicant as well as the respondent were not present and accordingly, the application filed by the respondent under Section 317 of Cr.P.C. was allowed. However, the prayer for adjournment made by the applicant was allowed on payment of cost of Rs.300/- and the case was fixed on 12/8/2015 and on 12/8/2015 also the applicant could not appear as she is suffering from cancer and had gone to Bombay for her treatment, but the prayer for adjournment was accepted on payment of cost of Rs.500/-. On 10/9/2015 the Presiding Officer was on leave and the case was fixed for 9/10/2015. On 9/10/2015 the applicant was present and she was partially cross examined and the respondent raised an objection regarding territorial jurisdiction of the Trial Court. Thereafter, the case was fixed for 5/11/2015 for further cross examination of the respondent. On 5/11/2015 the applicant as well as the respondent were not present and accordingly, an application under Section 317 of Cr.P.C. was filed by the respondent which was accepted. Thereafter, the applicant also filed an affidavit of her witness Vishnu Kumar Agrawal under Section 145 of Cr.P.C. and it was pleaded that since the applicant is medically sick, therefore, one more time may be granted to appear for cross examination, however, the time was granted on payment of cost of Rs.500/- and the case was fixed for 22/12/2015. On 22/12/2015 and 20/1/2016 the applicant could not appear and the case was fixed for 22/2/2016. On 22/2/2016 the applicant appeared and her cross examina