Andhra Pradesh High Court - Amravati
Kamatham Prasadu Reddy, vs The State Of Andhra Pradesh on 25 July, 2022
IN THE HIGH COURT OF ANDHRA PRADESH AT ANARAVAT! MONDAY, THE TWENTY FIFTH DAY OF JULY TWO THOUSAND AND TWENTY TWO .- -PRESENT: THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI. CRIMINAL APPEAL NO: 308 OF 2022 Hehwee: . Kamatham Prasadu Reddy, S/o.Sreenivasulu Reddy, Aged.3? years, Rfo,D No. B-12-349, Mumbai Road, Buchireddipalem Village and Mandal, SPSR Nellore District, »onpininantAonaiant AND 1. The State of Andhra Pradesh, Ren. by its Public Prosecutor, High Court Suldings, Nelanadu, Guntur District. @. M shiva Kumar], Wro.Prabhakar Rac, Aged about. 49 years, Occ. Chief Ticket Inspector(Squad), Guntur Railway Station, Guntur City, Guntur District, » mocused/Nespondent Petition under Section 375 (4) af Cr.P.C, praying that In the circurnstances slated in the memorandum of grounds filed In Criminal Petition, the High Court may be pleased fo sel-asicde the dismissed for default Judgment O120-1 17-2021 passed in CO No.i45 of 2020 on the Special Judicial Magistrate, Kovur, SPSR Nellore District acquifting the Accused for the offence Under Section 138 of Negotiable Instruments Act, 1881 by allowing this Criminal Appeal by restoring ihe above CC for further proceedings: The petition coming on for hearing, upon perusing the Pelitien and the memorandum of grounds filed In support thereof and upon hearing the arguments of Sri Nagaraj Naguru, Advocate for the Petitioner and of 8 Saor fs rp korg de os x xet . wie x ain exh ndion cos ex fe RE ~ ; Venkata Sainath, Special Assistant Public Prosecutor for the Respondent No.1. the Court made the following: ORDER:
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI CRIMINAL APPEAL No.305 of 2022 JUDGMENT:-
Assailing the judgment dated 29.11.2021 passed in C.C.No.145 of 2020 on the file of the Special Judicial Magistrate, Kovur, the complainant preferred this Criminal Appeal under Section 378(4) of the Code of Criminal Procedure, 1973 ( for short, *Cr.P.C.').
2. The appellant herein/complainant filed C.C.No.145 of 2020 under Section 138 r/w. 142 of the Negotiable Instruments Act against the 2nd respondent herein/accused. When the matter stood posted to 29.11.2021, the complainant was called absent and there was no representation on his behalf and consequently the learned Special Judicial Magistrate, Kovur dismissed the case and acquitted the accused under Section 256 of Cr.P.C.
3. Aggrieved by the said dismissal order, this appeal has been preferred contending that the judgment of the Court below is contrary to law, weight of evidence and probabilities of the case. On 29.11.2021, due to heavy rain and cyclone and in view of proclamation of the Executive Magistrate not to leave the houses, the complainant could not reach Kovur and appear before the Court, however, the Court below failed to take note of the same and in a casual and routine manner dismissed. the complaint. The Court below failed to consider the previous appearance of the s of adjournments and: contrary to the complainant on all the date observations of the Hon''ble Supreme Court in Azeem vs: A. Venkatest', dismissed the complaint. Hence, prayed to allow the Criminal Appeal by setting aside the default dismissal order and restore the C.C.to file. 1 (2002)7 SCC 726
4. This Court ordered notice to the 2" respondent herein/accused in leave petition and the same was served on him, but he did not choose to enter his appearance.
5. Heard Sri Nagaraju Naguru, learned counsel for the appellant and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the 1 respondent-State
6. The learned counsel for the appellant, in elaboration, submitted that absence of the complainant is not willful and the complainant was attending the adjournments without fail and due to the atmospheric conditions prevailed, he could not attend the Court so also his counsel. Hence, prayed to allow the criminal appeal.
7. The learned Special Assistant Public Prosecutor has brought to the notice of this Court the observations of the Hon'ble Supreme Court in the decision relied on by the learned counsel for the appellant and prayed to pass appropriate orders.
8. It is to be noted that the complaint filed by the appellant under Section 138 r/w. 142 of the Negotiable Instruments Act was dismissed on 29.11.2021 and the 2™ respondent/ accused was acquitted under Section 256 Cr.P.C.
9. In the decision referred to supra relied on by both the counsel, the Hon'ble Supreme Court, at para-4 held as thus:
"4, In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused oni' for ansence of the complainant on one day and refusing to complaint when sufficien FO mplainant" t cause for the absence was shown by
10. In the instant appeal, as per the contention of the appellant, his complaint was dismissed for his singular default in appearance and the learned Magistrate did not take into consideration the fact that there was heavy cyclonic storm on that day.
11. For brevity, Section 256 of Cr.P.C. is extracted hereunder:
"296. 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:
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.
(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,"
12. A plain reading of the above Section makes it clear that, if complainant does not appear, the Magistrate may adjourn the hearing of the case to some other day for some reason he thinks it proper and in case he finds no proper reason for adjourning the matter, he shall acquit the accused. Thus, absence of the complainant does not ipso facto entail dismissal of the complaint and only if the Magistrate in his discretion thinks that there are no grounds to adjourn the hearing of the case to some other day, then only he shall acquit the accused.
13. The impugned judgment is very cryptic and it does not contain the purpose of listing of the case, the requirement of the presence of the complainant on that particular day and the circumstances that compelled the learned Magistrate to acquit the accused instead of adjourning the hearing of the case. According to the appellant, due to cyclone and heavy i the rainfall, he could not attend the Court, which seems reasonable. Thus, learned Magistrate has adopted a very unjust attitude resulting in failure of justice. The judgment did not even record the presence or otherwise of To, => MSB the complainant on the previous dates of adjournments. Thus, it is evident that the learned Magistrate in a casual and routine manner passed the judgment under Section 256 of Cr.P.C., which is not proper.
14. For the above reasons, this Court is inclined to allow this Criminal Appeal.
15. Accordingly, the Criminal Appeal is allowed. The impugned judgment dated 29.11.2021 passed in C.C.No.145 of 2020 on the file of the Special Judicial Magistrate, Kovur is set aside. Consequently, C.C.No.145 of 2020 is restored to file. The learned Special Judicial Magistrate, Kovur shall dispose of the C.C. in accordance with law, by giving notice to the parties.
Miscellaneous applications, pending if any, shall stand closed. Sdi- K. J. RAJA BABU ASSISTANT REGISTRAR ITTRUE COPYI/ SECTION OFFICER . The Special Judicial Magistrate, Kovur, SPSR Nellore District. M.Shiva Kumari, W/o.Prabhakar Rao, Occ. Chief Ticket Inspector(Squad), Guntur Railway Station, Guntur City, Guntur District. (by RPAD) One CC to Sri. Nagaraju Naguru, Advocate [OPUC] Two CCs to Sri Soora Venkata Sainath, Special Asst. Public Prosecutor, High Court of AP [OUT] ;
One spare copy.
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HIGH COURT RG DATED 2M 0e2 ORDER CRLANo.208 of £082 ALLOWED