Andhra Pradesh High Court - Amravati
Sarisha Financial Services ... vs The State Of Andhra Pradesh on 31 October, 2022
HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Appeal No.488 of 2022
Judgment:
This Criminal Appeal has been filed against the docket order,
dated 17.08.2022, passed in CC No.543 of 2020 by the learned VII
Special Magistrate, Visakhapatnam.
2. The appellant herein filed a complaint, under Section 138 read
with Section 142 of the Negotiable Instruments Act, against the
respondents 2 and 3 herein and the same was numbered as CC
No.543 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
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 14.08.2022, 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 17.08.2022 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.
2002 (7) SCC 726
"In our opinion, the learned Magistrate and the
High Court have adopted a very strict and unjust attitude
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.543 of 2020 by the learned
VII Special Magistrate, Visakhapatnam, is set aside and CC No.543 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
HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Appeal No.488 of 2022
Dated:31.10.2022
Nsr
