M/s Viswa Bharathi Mutually Aided Co-Operative Credit Society Ltd. v. G. Janaki Ramulu and another

Telangana HC7 Nov 2022CRLA/462/2022

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against the dismissal of a complaint under Section 138 NI Act. The trial court erred in dismissing the case for non-appearance of the complainant on the third date, as the accused had not yet appeared. The appellate court quashed the dismissal and restored the trial.

What did the court decide?

Criminal Appeal allowed; impugned order set aside; STC restored for prosecution.

M/s Viswa Bharathi Mutually Aided Co-Operative Credit… — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY,THE SEVENTH DAY OF NOVEIVBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CRIMINAL APPEAL NO: 462 OF 2022

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Appeal Under Section 378 (4) of Cr.P.C. aggrieved by the Judgment dated 30-03-2022 in S.T.C. No. 2738 ot 2021 on the file of the Court of the Xll Metropolitan Magistrate, at Hyderabad.

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Between:

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M/s Viswa Bharathi Mutually Aided Co-Operative Credit Society Ltd, Registered Office at. 2-2-113211011 , Opp. S.B.l., Shivam Road, New Nallakunta, Hyderabad^rep by their Chief Executive Officer and Authorized Signatory, K. Dayanand S/o Srinivasan, Aged about 68 years, Rl/o New Nallakunta, Hyderabad

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...APPELLANT/ Complainant

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AND

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G. Janaki Ramulu, S/o G. Ramesh, Aged about 56^years, Occ. Business, Plot No. 491, Road No. 6, H.No. 5-6-202, Vaidhinagar, Vanasthalipuram, Hyderabad -500070. .. Respondent / Accused 2. State of Telangana, Represented by the Public Prosecutor, High Court^of ...RESPODENT Judicature at Hyderabad.

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Counsel for the Appellant: SRl. MALIPEDDI SRINIVAS REDDY

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Counsel for the Respondent No. 2 : THE PUBLIC PROSECUTOR

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Oounsel forthe Respondent No. 1 : NONE APPEARED

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The Court made the following: ORDER

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TTIE I{ON,BLE DT. JUSTICE G. RADHA RANI

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CRIMINAL APPEAL No.462 OF 2022

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oltDliR:

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This Criminal Appeal is preferred by the appellant-complainant aggrieved by the order dated 30.03.2022 in STC No.2738 of202l on the file of XII Metropolitan Magistrate, Hyderabad, wherein the complaint filed by lrim under Section 138 of the Negotiable Instruments Act (for short 'NI Act') was dismissed for nonprosecutlon.

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2" lleard leamed counsel lor the appellant. There is no representation by the leamed counsel for the I't respondent.

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The learned counsel for the appellant submitted that the trial court erroneously disrnissed the complaint on the ground that the appellant was absent, ignoring that the appellant was absent only on two adjournments and the case was dismissed on the third date of hearing. The date of l.rearing of the case was on 2L01.2022, however, due to Covid-19 pandcmic situation and in view of the circular issued by this Courl vide ROC No.394/SO/2020 dated^17.01 .2022, the case

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Dt GR&J 2 C A No.162^of )D2

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was adjourned to 23.02.2022. On 23.02.2022, the appellant's

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representative Mr. Anil Kumar could not reach the court in time and by the time he reached, the matter was called and adjoumed to 30.03.2022. On30.03.2022, as the representative of the appellant^was suffering with high grade fever and body pains, he could not attend the court. The counsel on record for the appellant was also out of station, as such, there was no representation on behalf of the appellantcomplainant. The court ought to have appreciated that on 30.03.2022, the presence of the appellant-complainant was not necessary^as by that date, the accused had not made his appearance and^{was not examined} under Section 25 I Cr.P.C. The presence of the appellant-complainant was mandatory only after the appearance of the 1" respondentaccused, as such dismissal of complaint was wholly^unwarranted.

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He further submitted that the trial court failed to appreciate^that the subject cheque was for a^{sum ofRs.53,00,000/-and huge stakes} were involved and more^{particularly, the appellant societywas formed} with a virtuous object to cater the frnancial needs of its members and was answerable to its members for the recovery of amounts from defaulting members and^{prayed to} allow the appeal by setting^aside

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D.GRR,J Crt/ No.162 o/ 2022

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the judgment dated 30.03.2022 passed in STC No.2738 of 2021 by the XII Metropolitan Magistrate, Hyderabad.

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He relied upon the judgments of the Hon,ble Apex Court in Associated Cement Co.Ltd. v. Keshavanandr and Mohd. Azeem v. A. Venkatesh and another2.

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Perused the record. The record would disclose that the trial couft dismissed the STC filed by the complainant due to his absence on30.03.2022. The Hon,ble Apex Court in the Associated Cement Co.Ltd.'s case (l supra) held that:

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"17. Reading the Section in its entirety would reveal that two constraints are imposed on the court fo, "^"."iring the power under the Secrion. First is, if the court thirk;;; i;'" situation it is proper to adjoum rhe hearing th"";;-;;;ilate shall not acquit the accused. Second is, when the .";;" considers thar personal attendance of the complain-ani'illl i"""rru.y on that lay the magistrate has the power ,"'ai.p""* with his attendance and proceed with the ... Wt." if,l'court notices that the complainant is absent on a pa.ticutar-duyit-. "o ur, consider whether personal attendance "i ,h",;;p6;;; .",t1"-l]irl^{.o, that day for progressof tt e cas" ana-also whether} .ne srruallon does not iustifu the case being adjoumed to another date due ro any other ;eason. If the situatifo ioo ,oi ;rr,ify ,fr" case being adjoumed the^{court is fiee to di.;i;; il" comptaint} and acquit the accused. But if the p.".'"-n"" oiii"-complainant on that day was quite u*""".sury th"n ,esortirrg io tf,e st"p of axing down the complaint -uy ,Lt U" u p.op".?.rcise of the power envisaged in the section. rne aiscreiioi miir,"."fo." U" exercised judicially and _fairly *ith"rr l;;;iri;th. .uur" of administrarion of crinrinal.justic

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' l^{relr; r} scc otz '^(2ooz) i scc 726

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Dr CP'R-J A! A^No162o12022

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The trial^{court failed to state in the dismissalorder for what} reasons^{the presenceof the complainantwasnecessarybeforethe} court^{on the said date' As submitted by the leamed counsel for the} appellant,^{it was only on the third date of hearing the matter was} dismissed^{for non-appearanceof the complainant'}

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8.^{. The Hon'bleApex Court in Mohd'Azeem's case(2 supra) also} held that^{for one singular defaultin appearance on the part of the} complainant,^{dismissaror complaintwas not proper.The record also} would^{disclose that the subjectchequewas for asum of} Rs.53,00,000/-^{and hugestakes were involved in the case'} Dismissal of the^{compraint wouldcause ineparabreinjury to the complainantas} the complainant^{was a Society formedto cater the financialneedsof} its members^{and wasanswerable to its membersfor the recoveryof} amounts^{from defaurting persons. I{ence,it is consideredfit to allow} the appeal^{by settingasidethe impugnedorder'}

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In the^{result,the Criminal Appeal is allowedsettingaside the} judgment dated^{30'03'2022 in STC No'2738of 2021on the file of XII} Metropolitan^{Magistrate'Hyderabad and directing the trial court to}

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) t rlA No !62 of2022Dt.GRRJ

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