THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL APPEAL No.468 of 2021
JUDGMENT:
The present appeal is filed by the appellant/complainant aggrieved by the orders passed in C.C.No.535 of 2017 on 11.04.2018, whereby the learned II Special Magistrate, Hyderabad, dismissed the complaint filed under Section 138 of the Negotiable Instruments Act, 1881, on the ground that the complainant is absent, no representation, process not paid and the accused is acquitted.
2. Learned counsel for the appellant submits that Non-Bailable Warrant (NBW) was pending against the respondent No.2/accused from 27.11.2017 onwards. He further submits that on 11.04.2018, the appellant is not appeared in the Court below and the junior counsel has wrongly noted the hearing date as 12.04.2018 instead of 06.03.2018. As such, on 06.03.2018, neither the appellant nor his counsel is present and without considering the same, the Court below passed the impugned order. He submits that the learned Judge ought not to have dismissed the application for the absence of one day, which would cause lot of hardship to the appellant. Further, for the mistake committed by the junior counsel, the party should not be made to suffer. He further submits that even if the impugned order is set aside, no prejudice would be caused to respondent No.2/accused.
3. This Court has permitted the appellant to take out personal notice on respondent No.2, vide order dated 26.03.2019. But, none appeared on behalf of respondent No.2.
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4. Heard Mr.Venkat Reddy Donthi Reddy, learned counsel for the appellant, and perused the material on record.
5. In the impugned order, it is not even recorded by the learned Judge that on the earlier occasion i.e., on 22.02.2018, the appellant is absent or not. But, as per the docket proceedings, it appears that the appellant was absent on four occasions and further NBWs were issued on 27.11.2017 against the accused. Balancing the interest of both the parties, this Court deems it appropriate to set aside the impugned order dated 11.04.2018 on certain conditions.
6. Accordingly, the criminal appeal is allowed setting aside the order, dated 11.04.2018, passed by the learned II Special Magistrate, Hyderabad, subject to payment of costs of Rs.20,000/- (Rupees twenty thousand only) to respondent No.2/accused.
Miscellaneous Petitions, pending if any, shall stand dismissed.
__________________________ LALITHA KANNEGANTI, J Date: 10.12.2021 mar/sj