Andhra Pradesh High Court - Amravati
Dasari Merry Suvarna Vijaya Kumari vs Badakere Subramanyam on 20 August, 2024
APHC010358042024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3368]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY, THE TWENTIETH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI
CRIMINAL PETITION NO: 5764/2024
Between:
Dasari Merry Suvarna Vijaya Kumari ...PETITIONER/ACCUSED
AND
Badakere Subramanyam ...RESPONDENT/COMPLAINANT(S)
and Others
Counsel for the Petitioner/accused:
1. K L N SWAMY
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR
2.
The Court made the following:
ORDER:
Heard Sri K.L.N.Swamy, learned counsel for petitioner.
Learned Assistant Public Prosecutor takes notice for the Sate and
opposed the application.
02. Learned counsel for petitioner would submit that the
petitioner is an accused in C.C.No.1419 of 2019 on the file of
learned V Additional Munsif Magistrate, Guntur; the case was
posted for pronouncement of Judgment to 25.07.2024; on that
day, the accused did not appear as she was engaged with official
work at Sub Treasury Office, Narasaraopeta, Palnadu District and
filed an application U/s.317 Code of Criminal Procedure, 1973
(hereinafter referred to 'Cr.P.C.') to dispense with her presence;
learned Magistrate dismissed the application, proceeded with
pronouncement of judgment, found the accused guilty for the
offence U/s.138 of Negotiable Instruments Act, 1881 (hereinafter
referred to as „138 N.I.Act') and accordingly, convicted her
U/s.255(2) Cr.P.C.; learned Magistrate issued Non-bailable
Warrant against the petitioner/accused for her production before
the Court on hearing quantum of sentence as per law, for
imposing sentence for the offence U/s.138 N.I.Act.
03. Later, the petitioner filed application on 13.08.2024
U/s.72(2) Cr.P.C. to cancel the warrant issued against the
petitioner herein but the learned Magistrate did not consider the
said application.
04. The learned counsel for petitioner would submit that police
are trying to execute the arrest warrant issued against the
petitioner herein.
05. Learned Assistant Public Prosecutor representing State
opposed the application, contended that undisputedly the learned
Magistrate delivered judgment in the case i.e., C.C.No.1419 of
2019 on 25.07.2024 and as per law, she convicted the accused
U/s.255(2) Cr.P.C. for the offence U/s.138 N.I.Act. The
Magistrate shall hear the accused on quantum of sentence and
pass appropriate order on quantum of sentence; In those
circumstances, with a direction to petitioner, to appear before the
trial Court, and then the trial Court may hear her on quantum of
sentence and pass appropriate orders according to law, there are
no grounds to interfere with the impugned order dated 25.07.2024
rendered in C.C.No.1419 of 2019 by the learned Magistrate, and
the present Criminal Petition is not maintainable in law.
06. In the light of above rival contentions, the point for
consideration in this petition is as under:
"Whether the order dated 25.07.2024 passed in
C.C.No.1419 of 2019 on the file of learned V Additional
Munsif Magistrate, Guntur, is liable to be quashed as
prayed for U/s.482 Cr.P.C."
07. POINT:
The undisputed facts in the case on hand are that the
petitioner is an accused in C.C.No.1419 of 2019 on the file of
learned V Additional Munsif Magistrate, Guntur. The said case
was posted to judgment on 25.07.2024. On that day, the
petitioner filed an application U/s.317 Cr.P.C. to dispense with her
presence. It was dismissed by the learned Magistrate. The said
order was not challenged before any higher forum. The learned
Magistrate pronounced the judgment on 25.07.2024, found the
accused guilty for the offence U/s.138 N.I.Act, convicted the
accused U/s.255(2) Cr.P.C. for the said offence. Therefore,
Magistrate to impose sentence on the accused, shall hear the
accused on quantum of sentence. In that view of the matter, the
presence of accused before the learned Magistrate is required.
08. Now, it appears that the petitioner without appearing before
the learned Magistrate again filed application U/s.72(2) Cr.P.C.
09. This Court in the case of Dilip Kulkarni and others Vs.
Bahadurmal Chowdary and sons and another1 held that
"therefore, it seems imperative to hear the accused on the
2005 (2) ALD (Crl.) 171
question of sentence even in summons cases or summary trial
cases since no appropriate sentence can be passed without
hearing the accused and in the absence of relevant criteria which
make the sentence adequate and appropriate. For the above
reasons, the accused shall be heard before passing the sentence
in all criminal cases notwithstanding the procedure to be adopted
in trying the said cases. Therefore, the Court below has not
committed any illegality in adjourning the case to hear the
accused on the question of sentence".
10. In the light of above factual matrix and legal position, the
petitioner shall appear before the learned Magistrate to answer
questions on quantum of sentence, to enable the Magistrate to
pass appropriate orders on sentence, according to law for the
offence U/s.138 N.I.Act. In those circumstances, this Court is of
the considered opinion that there are no ground to interfere with
the impugned order dated 25.07.2024 rendered in C.C.No.1419
of 2019 by the learned Magistrate, and the Criminal Petition is
liable to be dismissed. Accordingly, the point is answered.
11. In the result, the Criminal Petition is dismissed at the stage
of admission itself. The petitioner is directed to appear before the
learned Magistrate within seven (07) days from the date of receipt
of the copy of order. On such appearance, the learned
Magistrate may hear her on quantum of sentence and pass
appropriate orders according to law. Till then, the Non-bailable
Warrant issued against the petitioner/accused shall stand
suspended. On passing sentence, the petitioner is at liberty to
file necessary application U/s.389(1) Cr.P.C. On filing such
application, the learned Magistrate shall dispose of the same on
the same day, as per law. If the petitioner fails to appear before
the learned Magistrate as directed above, this order stands
vacated automatically without recourse to the Court. The learned
Magistrate may proceed as per law for execution of Non-bailable
Warrant issued against the petitioner/accused.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_______________________ ___
JUSTICE B.V.L.N. CHAKRAVARTHI
20.08.2024.
PSA
THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
CRIMINAL PETITION NO: 5764 of 2024
Date: 20.08.2024
PSA
