HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition Nos.6335 and 6336 of 2009 Dated : 13.08.2009 Between : D.Radhakrishna ….. Petitioners a n d 1) P.Panduranga Rao 2) The State of A.P. ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition Nos.6335 and 6336 of 2009 COMMON ORDER: Heard Sri D.Seshadri Naidu, learned counsel for the petitioner in both the cases, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the second respondent in both the cases. No notice is being ordered to the first respondent in both the cases as the disposal of these two criminal petitions at the stage of admission will no way even remotely effect the rights and interests of the first respondent. The petitioner is facing prosecution in C.C.No.380 of 2006 on the file of the I Additional Judicial First Class Magistrate, Tenali, at the instance of the first respondent for the offence punishable under Section 138 r/w.Section 142 of the Negotiable Instruments Act. The first respondent also filed O.S.No.377 of 2007 on the file of the Principal Senior Civil Judge, Tenali, for recovery of the same debt towards which the subject cheque was claimed to have been issued. When the petitioner sought for sending the promissory note and chque in question to a handwriting expert, the same was negatived by the trial Court, but in revision, this Court ordered in Crl.R.C.No.1764 of 2007 forwarding the said document to an expert for opinion on deposit of Rs.5 lakhs by the petitioner and further directed that the amount shall be paid to the first respondent, if he succeeds in the criminal case, which in the meanwhile is to be kept in a fixed deposit. With this background, the trial of the criminal case had almost come to a close and the matter is at the stage of arguments. While so, the petitioner appears to have absented himself on a date of hearing before the trial Court, for which, a non-bailable warrant was issued against him to secure his presence before the Court. His petition in Crl.M.P.No.1747 of 2009 to recall the warrant was dismissed on 15.07.2009 distinguishing M/s.Rama Krishna Agencies v. State[1], which enabled the trial Court to recall the warrant in the absence of the accused, and opining that the presence of the accused is required for the disposal of the case on merits and as the accused absent since a number of dates of hearing is not having any merits to request for recall of the warrant. Thereupon, the accused/petitioner herein filed Crl.M.P.No.1804 of 2009 to re-open the matter, but the trial Court dismissed the same also as the petition to re-call the non-bailable warrant was dismissed. This petition for re-opening was filed by the petitioner only for an opportunity to permit his counsel to advance arguments as the judgment was not yet pronounced by the trial Court. But, the same was considered infructuous. The petitioner approached this Court with these criminal petitions contending that Crl.M.P.No.1747 of 2009 for re-call of the non-bailable warrant and Crl.M.P.No.1804 of 2009 for re- opening the matter are having nothing to do with each other and the refusal of the trial Court to recall the warrant and to hear the arguments on behalf of the petitioner led to miscarriage of justice. The conduct of the petitioner during the progress of trial in being absent on a number of dates of hearing appears to have annoyed the trial Court so much as to straight away reject his request for re-call of non-bailable warrant though there was a possibility for it to consider the said request even in the absence of the accused. The reasons given by the trial Court for not recalling the non-bailable warrant cannot be considered irrelevant or improper and the order cannot be considered ex facie inappropriate or illegal, but rules of procedure being ultimately intended to advance substantial justice, but not to impose savage punishments on the parties for any technical lapses, the petitioner, who already suffered the threat of being apprehended any moment since considerable time, and who had to suffer the pain and expense for approaching this Court with these criminal petitions, can be given one more last opportunity to appear before the trial Court without any fear of being apprehended or detained. However, insofar as the order of the trial Court in refusing to re- open the matter only for the learned counsel for the petitioner to advance his arguments in the criminal case on the ground that non- bailable warrant against the petitioner was not recalled, it clearly appears to be not a sound exercise of judicial discretion. The presence or absence of the accused before the trial Court and the Court being compelled to issue a compulsive process to secure his presence before the trial Court are not relevant factors insofar as giving a reasonable and just opportunity to the accused to defend himself through arguments of the learned counsel before the trial Court. Whether the trial Court agrees that such argument was correct or not is a different question, but not providing an opportunity for advancing arguments would be negativing the right of the accused to be heard. The annoyance and inconvenience caused by the conduct of the petitioner earlier in the conduct of the case should not lead to deprivation of an opportunity for hearing his arguments and, therefore, the order in the said petition is bound tobe interfered with. Therefore, without interfering with the order of dismissal in Crl.M.P.No.1747 of 2009 in C.C.No.380 of 2006 on the file of the I Additional Judicial Magistrate of First Class, Tenali, dated 15.07.2009, the non-bailable warrant issued against the petitioner herein in the said case shall be kept in abeyance for a period of one week from today and shall be recalled in case the petitioner appears before the trial Court within the said one week. On such appearance, the petitioner shall continue to appear on the further dates of hearing before the trial Court. The order the said Court in Crl.M.P.No.1804 of 2009 dated 15.07.2009 is set aside and the said Court shall give a reasonable opportunity to the learned counsel for the petitioner or the petitioner himself to advance the defence arguments in the said case, before the trial Court proceeds to consider the matter for pronouncement of judgment. The criminal petitions are ordered, accordingly. ______________________ G.BHAVANI PRASAD, J 13th August, 2009 SUR [1] 2000 (1) LS 78