IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No.1688 of 2009 Between: R. Kaarilina Peeterji ... APPELLANT AND I.B. Santhakumari and another ... RESPONDENTS JUDGMENT: This Criminal Appeal is directed against the order of acquittal, dated 16-09-2009 passed in C.C.No.246 of 2009 on the file of the Spl. Judicial Magistrate of First Class for Mobile, Nellore, whereby and whereunder the learned Magistrate dismissed the complaint filed under Section 190 of Cr.P.C., for the offences under Sections 138 and 142 of Negotiable Instruments Act, 1881 and Section 420 of IPC. 2. Notice before admission came to be ordered on 27-11-2009. The petitioner was also permitted to take out notice to the first respondent/accused by registered post with acknowledgment due. The appellant/complainant took out notice and filed proof of service. Despite service of notice the first respondent/accused did not choose to enter into appearance either in person or through a counsel. 3. Heard the learned counsel appearing for the appellant and Addl. Public Prosecutor appearing for the second respondent-State and perused the judgment impugned in the appeal. 4. The learned counsel appearing for the appellant/ complainant submits that the trial court having adjourned the case to 18-09- 2009 altered the date as 16-09-2009 and called the matter on the said date and thereby, there could not be any representation on either side on 16-09-2009. He further submits that the absence of the appellant/ complainant on the said date was not willful and it was because of change of date from 18-09-2009 to 16-09-2009. 5. The appellant also placed on record the affidavit of the counsel appeared on his behalf in the lower court. The relevant portion of the affidavit of the counsel appeared on behalf of the appellant/complainant in the lower court reads as hereunder: “I submit that the C.C.No.246/2009 was posted before the lower court, for filing the chief affidavit of the complainant as PW-1 and the date was given as 18-09-2009. The chief affidavit of the complainant was prepared and notice was also given to the other-side counsel and on receiving the copy of the chief affidavit singed on 18-09-2009. On 18-09-2009 the revision petitioner, the accused and also his advocate along with me were present before the Hon’ble Lower Court. The matter was not called on that date. On enquiry it was noticed the matter was called on 16-09-2009 two days prior to the given date and the docket order is as follows:- ‘Both parties called absent. No representation in spite of given several adjournments, the complainant did not appear before the Hon’ble Court to present her case, by way of filing chief affidavit. It seems that the complainant do not have any intention to proceed with the case. Therefore, I do not find any reason to adjourn the matter without any representation from the complainant. Hence, the complaint is dismissed.’ I submit that the docket order indicates clearly that the notice date of examination was not on 16-09-2009 and it clearly indicates that both the parties absent and no representation on 18-09- 2009. The chief affidavit clearly indicates that the order of Judgment is 18-09-2009 but not 16-09-2009. I submit that it also further indicates that date of the order i.e., 18-09- 2009 clearly over-written as 16 indicates that was change of date, which was not in the knowledge of either of the parties. Therefore, the revision petitioner or her counsel cannot be made any responsible or liable for the order of the dismissal in the order dated 16-09-2009.” 6. The affidavit of the counsel appeared for the appellant/ complainant in the trial court indicates that the case was originally posted to 18-09-2009 and subsequently altered as 16-09-2009. The altered date of posting was not within the knowledge of either of the parties. 7. In that view of the matter I find that the appellant/ complainant made out a valid ground for her absence on 16-09-2009 before the trial court. 8. Accordingly, the judgment impugned in the appeal is set aside and the matter is remitted back to the trial court for fresh disposal and consequently C.C.No.246 of 2009 stands restored to file for fresh disposal, in accordance with law. 9. With the above observation, the Criminal Appeal is allowed. ___________________________ B. SESHASAYANA REDDY, J February 22, 2010. Note: Furnish CC in one week. B/o.PN THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No.1688 of 2009 February 22, 2010 Note: Furnish CC in one week. B/o.PN