Bondada Satyanarayana vs Smt. Korapu Surekha
2021 Latest Caselaw 2894 AP

     THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

             CRIMINAL APPEAL No.1005 of 2019
JUDGMENT:-

      This criminal appeal is filed under Section 378 of the Code

of Criminal Procedure, 1973 (for short „Cr.P.C.‟) assailing the

docket order dated 05.09.2019 passed in C.C.No.447 of 2018 by

learned Principal Junior Civil Judge -cum- Judicial Magistrate

of First Class, Ramachandrapuram wherein the complaint was

dismissed and the accused was acquitted as per Section 256 of

Cr.P.C.

2.    The   brief   facts   of   the   case   are   that   respondent

No.1/accused borrowed an amount of Rs.2,00,000/- from the

appellant/complainant on 08.05.2016 for the purpose of

meeting her family expenses as well as other debts and executed

pronote in favour of the appellant agreeing to repay the same

with interest at 24% per annum. Subsequently on repeated

demands by the appellant, respondent No.1 issued cheque

No.854655 dated 29.10.2017 for Rs.2,00,000/- towards part

satisfaction, but the same was dishonoured on its presentation

with an endorsement "funds insufficient". The appellant issued

legal notice dated 09.11.2017 demanding respondent No.1 to

pay the cheque amount and the same was received by her on

10.11.2017 but as she did not chose either to give reply or to

pay the amount, the appellant filed private complaint and the

same was numbered as C.C.447 of 2018. The trial Court has

dismissed the said case on 05.09.2019 and passed the following

docket order:

"Complainant called absent. No representation. Accused absent. Petition filed and allowed. Though the matter was kept aside till 4:40 P.M., the complainant nor his counsel represented the matter and costs imposed by his Court was not paid, which shows that the complainant is not interested to proceed with the matter. The presence of PW1 is necessary today for proceeding the matter and the matter is coming for continuation of chief evidence of PW1 i.e. for marking of documents since last five adjournments and the complainant did not turn up for contiunuation of marking of documents. Having no other go, this court inclined to dismiss the complaint under Section 256 of Cr.P.C. This complaint is dismissed U/Sec.256 Cr.P.C. and accused is acquitted as per Section 256 Cr.P.C."

Aggrieved by the above docket order, the

appellant/complainant is before this Court by way of this

appeal.

3. Heard Sri Phani Teja Cheruvu, learned counsel for the

appellant and learned Assistant Public Prosecutor for

respondent No.2-state. Though notice was served on respondent

No.1 on 04.01.2020 as per track consignment, there is no

representation on her behalf.

4. Learned counsel for the appellant submits that the Court

below ought to have given further opportunity by imposing

further costs instead of dismissing the case. He submits that as

learned counsel for the appellant was suffering with viral fever

and the appellant was suffering with high blood pressure and

diabetes as on 05.09.2019 they failed to attend the Court on

said date but the Court below without appreciating the fact that

case record shows regular attendance of the appellant without

fail, has dismissed the case without giving further opportunity

to the appellant. Learned counsel for the appellant submits that

on all occasions either the appellant was present or an

application was filed on his behalf except on the date when the

matter was dismissed on 05.09.2019. It is submitted that non-

appearance of the petitioner and his counsel on the said date

was neither willful nor wanton. He submits that the appellant

will suffer irreparable loss if the case is not restored and the

Court below without considering all these facts has dismissed

the petition.

5. Learned counsel for the appellant has filed daily status of

the case with regard to the adjournments undergone from

01.07.2019 to 05.09.2019 before Court below, by way of memo.

A perusal of the same shows that on most of the occasions,

petitions were filed and the same were allowed. The proceedings

dated 01.07.2019 shows that costs imposed earlier were paid,

chief examination affidavit of PW1 filed, sworn on oath, affirmed

the contents of affidavit, Exs.P1 to P5 were marked and for

continuation of marking of the documents, the matter was

adjourned to 11.07.2019.

6. The Court below having failed to take into consideration

as to whether the complainant was diligent enough to pursue

the case or wantonly prolonging the proceedings has dismissed

the complaint without giving reasonable opportunity. As per the

docket proceedings, it appears that on earlier occasions either

the appellant‟s counsel or the appellant was present and in the

absence of the appellant, petitions were filed on his behalf which

were allowed but only on 05.09.2019 neither the petitioner nor

his counsel was present. Therefore, the Court below ought to

have given an opportunity before dismissing the complaint and

further though it was dismissed for non-prosecution, it is

mentioned in the order that the complaint is dismissed.

7. Taking into consideration that the petitioner was diligent

in prosecuting the matter, this Court deems it appropriate to

allow this appeal.

8. Accordingly this criminal appeal is allowed setting aside

the docket order dated 05.09.2019 passed in C.C.No.447 of

2018 by learned Principal Junior Civil Judge -cum- Judicial

First Class Magistrate, Ramachandrapuram and the matter is

remanded to the trial Court for fresh adjudication and the

parties shall cooperate for completion of trial.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

____________________________________ JUSTICE LALITHA KANNEGANTI Date :05.08.2021 IKN

THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

(Allowed)

CRIMINAL APPEAL No.1005 of 2019

Date : 05.08.2021

IKN