HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Appeal No.486 of 2022
Judgment:
This Criminal Appeal has been filed against the docket order,
dated 17.8.2022, passed in CC No.547 of 2020 by the learned VII
Special Magistrate, Visakhapatnam.
2. The appellant herein filed a complaint, under Section 138 read
with 142 of the Negotiable Instruments Act, against the respondents
2 and 3 herein and the same was numbered as CC No.547 of 2020. The learned Magistrate dismissed the said CC for default, by the impugned order dated 17.08.2022, which reads as follows.
"Complainant (PW.1) and accused are absent, petition under Section 317 Cr.P.C is filed and allowed, cost is reported as paid to the advocate of the complainant (PW.1), acknowledgment is filed, but there is no representation to complainant (PW.1) though a conditional order is passed on the previous adjournment, hence this case is dismissed for default."
3. Against the said order passed by the learned Magistrate, the appellant herein filed the present Appeal.
4. Learned counsel for the appellant/complainant contended that the appellant/complainant was suffering from ill-health and because of the said reason he could not attend the case hearing on 2 17.08.2022. He further contended that the counsel appearing for the complainant in the lower Court was held up in other Court for a part- heard matter and directed his junior advocate to represent the matter before the Court and seek time for presence of the complainant, as he was suffering from ill-health and that by the time the junior advocate had gone and represented the case, the said case was called and the same was dismissed for default. On coming to know of the same, the counsel approached the Court and made a request, but as the matter was already dismissed for default, the Court refused to restore the complaint on file.
5. Heard. Perused the record.
6. It is submitted that as the appellant had suffered from acute back pain on 14.8.2022, he visited the doctor for treatment and the Doctor while prescribing medicines advised complete bed rest for a week and also advised not to move from the bed. The reason given by the appellant for his absence on 17.8.2022 is only due to ill-health and the same is found to be a genuine one.
7. In similar circumstances, the Hon'ble Supreme Court in a decision reported in Mohd. Azeem v. A. Venkatesh1, observed thus.
"In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude 1 2002 (7) SCC 726 3 resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant."
8. In view of the aforesaid facts and circumstances of the case, this Court is inclined to interfere with the impugned order.
9. Accordingly, the Criminal Appeal is allowed and the docket order, dated 17.08.2022, passed in CC No.547 of 2020 by the learned VII Special Magistrate, Visakhapatnam, is set aside and CC No.547 of 2020 is restored to file. The learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties.
10. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal shall stand closed.
_____________________ K. SREENIVASA REDDY, J Dated:31.10.2022 Nsr 4 HON'BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.486 of 2022 Dated:31.10.2022 Nsr