THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.588 of 2005 (Dated : 24-08-2009) Between: Sri Jagadamba Traders, 15-9-358/14 A, II Floor, Muktiyargunj, Hyderabad, rep. By its Proprietor Balkishan Mantri …Appellant/complainant A n d State of A.P rep. By its Public Prosecutor, High Court of A.P., Hyderabad and another ….Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.588 of 2005 JUDGMENT: This appeal is directed against the order dated 13.11.2003 passed in C.C.No.789 of 1995 on the file of the IV Metropolitan Magistrate, Hyderabad, wherein the second respondent/accused herein was acquitted under Section 256 Cr.P.C., on the ground that both parties were absent on that day, NBW is pending, process was not paid in compliance of orders dated 13.9.2002 and there was no representation for the complainant. Heard learned counsel for the appellant/complainant. None appeared for the 2nd respondent and there was no representation on behalf of the 2nd respondent. Perused the records. The appellant is the complainant. He filed a complaint against the 2nd respondent herein alleging an offence under Section 138 of the Negotiable Instruments Act. As seen from the record, the complaint was filed on 6.11.1995 and sworn statement of the complainant was recorded on 17.11.1995. During the course of trial, the complainant was examined as Pw- 1 and Exs.P-1 to P-6 were also marked. Examination of the accused under Section 313 Cr.P.C was done on 17.3.1999. Thereafter, the complainant filed Crl.M.P.No.2974 of 1999 under Section 311 Cr.P.C to recall him for further evidence for marking some documents. The said petition was allowed on 25.6.1999. Against the said orders, the accused preferred Crl. Revision Petition 139 of 1999 and the same was disposed of on 15.9.2000 confirming the order of the trial Court. Subsequently, the accused did not appear before the Court and NBW was directed to be issued against him. However, the complainant has not paid the process and on 13.9.2002, the trial Court directed payment of fresh process. The said order was not complied with and the matter was called on 13.11.2003. It was found that both parties were absent and no representation was made for the complainant and process was not paid in compliance of the order dated 13.9.2002. Hence, the learned Magistrate acquitted the accused under Section 256 Cr.P.C. Learned counsel for the petitioner would submit that process was, in fact, paid on 14.11.2002, but the same was not noticed by the trial Court. He would further contend that as NBW was pending against the accused, the presence of the complainant was not really required on 13.11.2003, and therefore, the absence of the complainant on that day ought not to have resulted in the acquittal of the accused. In support of the said contention, he relied upon a decision of this Court in Sirajuddin Ali v. Mujtaba Ali and another[1], wherein this Court held that in an appeal filed against the acquittal, the Court is entitled to go into the sufficiency or otherwise of the course adopted for the absence of the complainant and set aside the order of acquittal. When NBW was pending against the accused and the matter was coming up for apprehending the accused in execution of the said warrant, the presence of the complainant before the Court is not really required. In the present case, though the complainant was not present and there was also no representation on behalf of the complainant regarding payment of process. Even otherwise, assuming for a moment that the complainant has paid process on 14.11.2002, still, even one year thereafter, when the matter came up before the Court on 13.11.2003, there ought to have been representation before the Court on behalf of the complainant, even if the complainant was unable to attend the Court, for any reason. In K.L.Venkateswar Rao v. State of A.P and another[2], this Court held that if the dismissal of the complaint for an offence under Section 138 of Negotiable Instruments Act amounts to acquittal, it can be set aside only in an appeal, provided the appeal is filed within time. Learned counsel for the appellant would submit that the complainant filed Crl.M.P.No.6212 of 2004 for condoning the delay of 239 days in preferring the appeal, and by order dated 9.11.2004, this Court allowed the said application and condoned the delay, in view of the fact that the delay has been well explained and when the petitioner was bona fide in prosecuting the litigation before the concerned Court. In the circumstances, having regard to the fact that the appellant has paid the process for issuance of NBW on 14.11.2002 in compliance of the order dated 13.9.2002 and the same was not taken note of by the learned Magistrate while passing the impugned order and the presence of the complainant was not required before the Court on the date of the impugned order and the appellant/complainant cannot be penalized for the lapse, if any, on the part of his counsel in not making proper representation before the trial Court regarding the payment of process, it is considered that the impugned order is liable to be set aside and the same is accordingly set aside with a view to give an opportunity to have the matter disposed of on merits, especially as the same reached the stage of examination under Section 313 Cr.P.C. However, having regard to the fact that the case is pending since a long time, the learned Magistrate is directed to dispose of the case within three months from the date of receipt of a copy of this order. In the event of the complainant not being diligent in prosecuting the complaint further, it is open to the learned Magistrate to pass appropriate orders in accordance with law. Accordingly, the Criminal Appeal is allowed setting aside the impugned order and the complaint is directed to be restored to file with a further direction to the learned Magistrate to dispose of the same within three months from the date of receipt of a copy of this order. _______________________ G.V.SEETHAPATHY, J 24th August 2009 RAR THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.588 OF 2005 DATED : 24-08-2009 [1] 1996 (1) ALD (Crl.) 671 (A.P.) [2] 2003(2) ALD (Crl.) 963 (AP)