THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL APPEAL No.262 of 2022
JUDGMENT:
This Criminal Appeal, under Section 378(4) of Cr.P.C., is filed by the appellant/complainant, challenging the docket order, dated 04.05.2022, passed in C.C.No.116 of 2021 by the Judicial Magistrate of First Class at Chevella, Ranga Reddy District, whereby the complaint filed by the appellant/complainant under Section 200 of Cr.P.C. against the respondent No.1/accused for the offence under Section 138 r/w 142 of Negotiable Instruments Act, 1881, was dismissed for default.
2. Heard the submissions of Sri S.Vijaya Prashanth, learned counsel for the appellant/complainant and perused the record.
3. On 20.01.2023, this Court ordered notice on respondent No.1/accused. Learned counsel for the appellant/complainant filed a memo in USR No.55561 of 2022 along with the postal track record which reveals that notice is served on respondent No.1/accused. In spite of the same, there is no representation on his behalf.
Justice Juvvadi Sridevi 2 Crl.A.No.262 of 2022
4. Learned counsel for the appellant/complainant would contend that the Court below erred in dismissing the complaint for default. The appellant/complainant was present in the morning and he went to pickup his daughter from the educational institution, who went for collection of Hall Ticket for Board Examinations. The appellant/complainant was present before the Court below on every date of hearing of the subject C.C. The appellant/complainant entrusted the matter to the other counsel to attend the case, but due to his daughter's marriage, said counsel was held up and could not attend the case. Absence of the appellant/complainant on the date of passing of the impugned order is neither intentional nor deliberate. The appellant/complainant deposited the process for issuing summons. Without there being any justifiable reason, the Court below dismissed the complaint for default, which is erroneous. Since the subject complaint is filed under Sections 138 r/w 142 of Negotiable Instruments Act, if the impugned docket order is not set aside, irreparable injury would ensue to the appellant/complainant and ultimately prayed to set aside the impugned docket order, dated 04.05.2022, and allow the appeal as prayed for.
Justice Juvvadi Sridevi 3 Crl.A.No.262 of 2022
5. The impugned docket order, dated 19.10.2022, reads as follows:
"Complainant called absent. Counsel for the complainant also called absent. No representation. Process for issuance of NBW against the accused not paid. The matter was passed over and again called at about 4:50pm still there is no representation. Neither the complainant nor his counsel is present. It appears the complainant is not interested and casually dragging on the case without even taking the basic steps. Hence the complaint of the complainant is hereby dismissed for default."
6. The appellant/complainant contends that on the date of passing of the impugned order dismissing the complaint for default, he was present before the Court in the morning and later, he went to pick up his daughter from educational institution who went for collecting Hall Ticket for Board examination. It is also his case that he was present before the Court on every date of hearing, except on the day when the complaint was dismissed for default. It is also averred by the appellant/complainant that his counsel also could not attend the Court in view of his daughter's marriage. However, no prejudice would be caused to the respondent No.1/accused, if the present appeal is allowed, in view of the fact that the subject complaint Justice Juvvadi Sridevi 4 Crl.A.No.262 of 2022 is filed under Section 138 r/w 142 of Negotiable Instruments Act. Having regard to the facts and circumstances of the case, it appears that the absence of the appellant/complainant before the Court below on the date of passing of the impugned order is not deliberate and that the appellant/complainant can be given one more opportunity to pursue the matter diligently, which course would sub-serve the ends of justice.
7. Accordingly, this Criminal Appeal is allowed by setting aside the docket order, dated 04.05.2022, passed in C.C.No.116 of 2021 by the Judicial Magistrate of First Class at Chevella, Ranga Reddy District. Consequently, the complaint of the appellant/complainant stands restored to file. The appellant/ complainant is directed to be diligent in pursuing the matter, failing which, the Court below can proceed in accordance with law.
Miscellaneous petitions pending, if any, shall stand closed.
_________________ JUVVADI SRIDEVI, J 17th March, 2023 Bvv