Dismissed

Nallamili Venkata Reddy, v. State of A.P.

Telangana HC21 Aug 2014CRLA/502/2007

Case brief

AI extract

What is this about?

The court dismissed the criminal appeal against an order acquitting the accused and dismissing the private complaint for cheque dishonour. The appellate court held that the lower court acted correctly in finding the complainant responsible for a three-year delay through non-appearance, thereby justifying dismissal under Section 256 Cr.P.C.

What did the court decide?

Appeal dismissed; impugned order of acquittal and dismissal of complaint confirmed.

Nallamili Venkata Reddy, Vs State of A.P. — Cheque Dishonour | Telangana HC (2014)

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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR CRIMINAL APPEAL No.502 of 2007

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JUDGMENT:

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Heard the learned counsel for the appellant and learned counsel for the second respondent/accused.

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This Criminal Appeal, under Section 374 (2) read with 382 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) is directed against the order dated 13.12.2006 passed in C.C.No.365 of 2003 on the file of the Additional Judicial First Class Magistrate, Ramachandrapuram.

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The appellant is the complainant and the second respondent is the accused. The appellant herein filed a private complaint against the second respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, on 07.07.2003. Thereafter, the complainant and accused appeared before the trial Court and the accused was examined under Section 251 Cr.P.C. on 29.09.2003. As the complainant failed to appear before the Court, on 13.12.2006, the impugned order came to be passed dismissing the complaint. It is stated in the impugned order that since last three years the complainant did not report ready for a trial, was also not appearing before the Court and no interest was shown by the complainant, the order came to be passed

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dismissing the complaint and acquitted the accused under Section 255 (1) Cr.P.C.

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The learned counsel for the appellant mainly submits that the order does not any where indicate that due to absence of the complainant the trial in the said case got delayed.

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On the other hand, the learned counsel for the second respondent submits that a reading of the order makes it very clear the intention of the complainant in delaying the proceedings by not appearing before the trial Court in spite of giving number of opportunities. He relies upon the judgment of this Court in D.V.N. Satyanarayana

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in V. Namburi Venkata Narayana and anothe r^[1] support of his plea.

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A perusal of the impugned order would show that since last three years the complainant was not ready for trial and was not appearing in the Court. The trial was getting delayed due to his absence.

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I n Associated Cement Companies Limited v.

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Keshvanand^[2] the Apex Court held as under:

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“Section 256 of the Code of Criminal Procedure, 1973 (for short “the new Code) is the corresponding provision to Section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to Section 256

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of the new Code is reproduced here:

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“Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate if of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.”

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What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum.

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Reading the Section in its entirety would reveal that two constrains are imposed on the Court for exercising the power under Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether

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personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

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In Priyadarshini Cements Limited, Hyderabad V.

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State of Andhra Pradesh and anothe r^[3] this Court while dealing with the similar situation held that the complaint cannot be dismissed unless the presence of the complainant is necessary on the date of hearing for the progress of the case. Similar view was taken by this Court i n Venkateswara Tea Traders, Narasaraopet, Guntur

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. District V. Madhu Agencies, Adoni and anothe r^[4]

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As stated above, the impugned order would show that on 13.12.2006 neither the accused nor the complainant were present before the trial Court. But since last three years the complainant was evading appearance in the Court and the trial was getting delayed due to his absence.

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In view of the Judgments of this Court and the Apex Court referred to above, this Court is of the opinion that there are no merits in the appeal and the same is liable to be dismissed.

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Accordingly, the Appeal is dismissed confirming the order dated 13.12.2006 passed in C.C.No.365 of 2003 on the file of the Additional Judicial First Class Magistrate, Ramachandrapuram.

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Miscellaneous petitions, if any pending, shall stand dismissed.

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C. PRAVEEN KUMAR, J

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21.08.2014 gkv

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