Chunduru Narayana Rao, Wg.Dt., vs The State Of Ap., Rep Pp Anr.,
2022 Latest Caselaw 9478 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

               CRIMINAL APPEAL No.1241 of 2017

JUDGMENT:-

      This Criminal Appeal is directed against the judgment of

acquittal passed under Section 256 Cr.P.C in C.C.No.43 of 2015

on the file of the learned Principal Junior Civil Judge - cum-

Judicial Magistrate of First Class, Eluru, whereby the complaint

filed under Section 138 of the Negotiable Instruments Act, 1881,

(for short 'the Act') by the appellant against the 2nd respondent

for dishonour of cheque issued towards discharge of legally

enforceable debt, was dismissed and accused was acquitted on

account of the absence of the complainant on the date of

hearing.

2. Heard learned counsel for the appellant, learned counsel

for the 2nd respondent and learned Additional Public Prosecutor

for the 1st respondent - State.

3. The appellant is the complainant in C.C.No.43 of 2015 on

the file of the learned Principal Junior Civil Judge - cum-

Judicial Magistrate of First Class, Eluru. He has filed a

complaint under Section 138 of the Act against the 2nd

respondent herein, who is accused in the said case, on the

ground that the cheque that was issued by the 2nd respondent

towards discharge of legally enforceable debt was dishonoured.

The trial in the said case commenced. Evidence affidavit of the

complainant was filed and thereafter the case was posted for

cross-examination of P.W.1. The complainant failed to turn up

for cross-examination despite granting of 15 adjournments.

Therefore, the trial Court has posted the matter finally imposing

costs on the complainant to 12.05.2016. On that day also, the

complainant was absent. Therefore, the trial Court has invoked

Section 256 Cr.P.C and passed the following order acquitting

the 2nd respondent, who is accused in the said case:

"Complainant is absent. No representation. Accused is present. Costs not paid by the complainant. The complainant even after conditional order passed by this court did not turn up for his cross examination. It shows that the complainant is not evincing interest to prosecute the case. Hence the complaint is dismissed and the accused is acquitted under section 256 of Cr.P.C."

4. Aggrieved by the impugned judgment of acquittal passed

under Section 256 Cr.P.C, the complainant has initially

preferred revision in Criminal Revision Petition No.60 of 2016 to

the learned Principal Sessions Judge, West Godavari at Eluru.

The said revision was dismissed by the learned Session Judge

on the ground that revision is not maintainable as appeal lies

against such order under Section 378(2) Cr.P.C. Therefore, the

complainant has preferred the present appeal to this Court.

5. Strictly speaking, no exception can be taken to the

impugned order passed by the learned Magistrate acquitting the

2nd respondent under Section 256 Cr.P.C, as despite the fact

that about 15 adjournments were granted to the complainant

that he did not turn up for cross-examination after the trial in

the said case commenced. Even after posting the matter finally

on costs of Rs.300/-, to 12.05.2016, the complainant did not

turn up for cross-examination. Therefore, the trial Court is left

with no other option except to acquit the accused under Section

256 Cr.P.C in view of the said conduct exhibited by the

complainant in not turning up for cross-examination after the

trial in the said case commenced.

6. However, as it is now stated that a sum of Rs.1,80,000/-

is involved in the lis for which a cheque was issued, which was

dishonoured and as learned counsel for the appellant would

implore the Court to provide an opportunity to the complainant

to prosecute his case by imposing some costs to adequately

compensate the accused on account of the said laches on the

part of the complainant in prosecuting this case, this Court, in

the said facts and circumstances of the case, is inclined to

provide one more opportunity to the petitioner by imposing

heavy costs with certain conditions.

7. Therefore, the Criminal Appeal is allowed setting aside the

impugned judgment, dated 12.05.2016, in C.C.No.43 of 2015 on

the file of the learned Principal Junior Civil Judge - cum-

Judicial Magistrate of First Class, Eluru, on payment of costs of

Rs.10,000/- (Rupees ten thousand only) to the 2nd

respondent/accused on or before 22.12.2022. On payment of

the said costs, the said criminal case in C.C.No.43 of 2015

stands restored on to the file of the trial Court. The appellant

shall immediately attend the Court and subject himself to the

cross-examination on the date given by the trial Court and also

produce all the witnesses on the further dates given by the trial

Court without seeking any unreasonable adjournments.

Miscellaneous petitions, if any pending, in the Criminal

Appeal, shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 08.12.2022 AKN

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

CRIMINAL APPEAL No.1241 of 2017

Date: 08-12-2022

AKN