IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 18th DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.664 of 2009 BETWEEN: Vengala Laxmi Narasimha Swamy … APPELLANT (S) And The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad and another … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.664 of 2009 ORDER: Petitioner in this criminal petition which is filed under Section 482 of Cr.P.C. is the sole respondent in Crl.R.P.No.218 of 2008 on the file of the Court of Metropolitan Sessions Judge, Hyderabad (for short ‘MSJ Court’). 2. The point that is raised for determination in this petition is whether the order dated 29.12.2008 passed in Crl.R.P.No.218 of 2008 by the MSJ Court condoning the delay of 18 days to enable the respondent therein to file a complaint under Section 138 of the Negotiable Instruments Act (NI Act) has been passed without giving due opportunity to the petitioner as contended by him? The other point that is raised is if the MSJ Court did not give sufficient opportunity to the petitioner in passing the above order, the matter should be remanded to the MSJ Court or this Court can decide this petition on merits. 3. Both the points arise in the following circumstances. The second respondent herein filed Crl.M.P.No.1700 of 2006 under Section 142(b)(ii) of the NI Act for condonation of the delay of 18 days on the ground of ill-health for filing a complaint against the petitioner for an offence punishable under Section 138 of the said Act. The Court of the VII Chief Metropolitan Magistrate, Hyderabad (CMM), which dealt with that petition after giving opportunity to both the parties has by its order dated 10.11.2008 dismissed that petition holding that the 2nd respondent failed to prove a sufficient cause for condoning the delay by disbelieving the medical certificate filed by him. Questioning that order of the CMM, the 2nd respondent filed Crl.R.P.No.218 of 2008. The MSJ Court by its order dated 29.12.2008 relied upon the medical certificate filed by the second respondent and allowed that revision. Assailing the said order of the MSJ Court, the petitioner filed this quash petition. 4. In this petition, the petitioner in the first instance raised an objection that an order dismissing a condone delay petition filed under Section 142(b) (ii) of the NI Act is in the nature of an interlocutory order and therefore a criminal revision is not maintainable against it under Section 397 Cr.P.C. and consequently the MSJ Court ought not to have entertained the revision itself in view of Section 397(2) Cr.P.C. This objection, in my opinion, is not a tenable one. It may be noted that the order of the CMM dismissing the condone delay petition for filing the complaint in a case like this puts an end to the proceedings and therefore it cannot be treated as an interlocutory order. The said objection of the petitioner is therefore overruled. The point whether the MSJ Court gave sufficient opportunity to the petitioner in passing the impugned order is first taken up. 5. The contention of the petitioner’s counsel under this point is that the impugned order of the MSJ Court reads in its preamble that one Sri Y.Ramulu, Advocate, appeared for the petitioner (respondent in revision) in the said revision and this is factually incorrect and that the petitioner has never engaged or authorized the said advocate Sri Y.Ramulu though he appeared for him in the CMM Court. It must be noted here that the petitioner took this plea as a specific ground in ground No.7 of this petition. The petitioner also filed an affidavit in support of his above plea. 6. The further contention of the petitioner is that inasmuch as the MSJ Court proceeded to dispose of the criminal revision and allowed it on the premise that Sri Y.Ramulu, Advocate, appeared for him, the MSJ Court cannot be said to have given him sufficient opportunity to represent his case and consequently the impugned order must be set aside on that ground and the matter should be remanded to the MSJ Court for fresh disposal after giving him opportunity. In this connection the petitioner’s counsel pointed out that the Advocate Sri Y.Ramulu also did not file any memo of appearance for the petitioner in the revision and this is clear from the record of the said Court which has been received in this Court. On the other hand, the counsel for the 2nd respondent argued that the advocate Sri Y.Ramulu who appeared for the petitioner in the CMM Court did appear for him in the MSJ Court also and therefore the contention of the petitioner on this ground cannot be accepted. 7. To decide the above rival contentions on this point, it would be useful to peruse the docket order dated 29.12.2008 passed in Crl.R.P.No.218 of 2008 and it reads as follows. “Memo is filed. Respondent is present. Heard. Judgment is pronounced (vide separate) judgment. In the result, the revision petition is allowed setting aside the order passed by the lower court and condoning the delay in filing the complaint in the lower court, on condition of the petitioner paying costs of Rs.1,000/- on or before 5.1.2009; and in default this revision petition shall stand dismissed automatically. No further extension of time will be granted.” 8. While making the above docket sheet entry, the MSJ Court passed separate order on 29.12.2008 itself allowing the revision and that is now questioned in this petition. It is seen from the docket sheet in the Crl.R.P.No.218 of 2008 that previously on 23.12.2008 the MSJ Court after registering the Crl.R.P. ordered notice to the respondent (petitioner herein) through his counsel and posted the matter to 26.12.2008. The docket order dated 26.12.2008 reads “Notice not given. T.E. (time extended) 29.12.2008.” indicating that notice was not given as ordered previously to the respondent. 9. The record in Crl.R.P. then shows that the 2nd respondent herein (petitioner in the Crl.R.P.) issued a telegraphic notice directly to the petitioner (respondent in the Crl.R.P.) informing him that steps were taken to serve notice on the petitioner’s counsel Sri Y. Ramulu (petitioner’s advocate in the CMM Court) but he refused on the ground that petitioner was not in contact with him and therefore notice was sent to him (petitioner) personally. Then on 29.12.2008 the 2nd respondent’s counsel filed a memo in the MSJ Court informing it that notice of revision was served on the petitioner. It should be noted that in the body of the Memo it is shown that it was signed by the ‘counsel for the respondent’. It appears that this is a mistake as the docket of the memo shows that it was filed by Sri M.A.Azeem and associates, Advocates for the 2nd respondent i.e. the petitioner in the revision. It was after filing of this memo on 29.12.2008, the MSJ Court proceeded to record the presence of the petitioner i.e. the respondent in the criminal revision and then it heard the matter and pronounced the impugned order. This point has to be examined in the above back ground. 10. There is nothing in the docket order dated 29.12.2008 of the MSJ Court to show that the petitioner herein engaged Sri Y.Ramulu, Advocate, and he argued the matter for the respondent. The preamble of the impugned order however shows that Sri Y. Ramulu, Advocate, appeared for the petitioner i.e. the respondent in the revision. The record in the criminal revision does not also show that Sri Y.Ramulu, Advocate, filed any memo of appearance for the respondent in the said revision or his presence is recorded in the docket. It may be noted that in his affidavit filed before this Court the petitioner even went to the extent of denying his appearance before the MSJ Court. This cannot be accepted for the simple reason that his presence on 29.12.2008 before the MSJ Court is recorded by the said Court in its docket order dated 29.12.2008 and that is conclusive proof of the said fact and the petitioner cannot be allowed to deny the same. Both sides did not cite any precedents governing the position when a party says that he did not engage an advocate whose presence is recorded in the preamble in the order of the Court but whose memo of appearance or vakalath is not found in the record. 11. It may be noted that the language of Section 397 Cr.P.C. shows that the High Court or Sessions Judge may suo motu act to examine the correctness, legality or propriety of any finding recorded by an inferior Court or it can exercise this revisional power even on the application of an aggrieved party. The normal rule is when this power is exercised on the application of an aggrieved party, the opposite party in whose favour the order of the inferior Court was passed needs to be heard either in person or through his counsel. In this case the record of the MSJ Court no doubt shows that the petitioner herein who was the successful party in the CMM Court was present before the MSJ Court. 12. The MSJ Court docket sheet or record do not show that the Advocate Sri Y. Ramulu filed any memo of appearance indicating that he was authorized by the petitioner to appear before the MSJ Court and argued the matter. The preamble of the impugned order does not show that the petitioner was heard in person but it shows that his counsel Sri Y.Ramulu was heard and to repeat the record does not show that Sri Y.Ramulu filed any memo of appearance for the petitioner in the MSJ Court. It is not necessary to make a roving enquiry as to whether the Stenographer of the MSJ Court typed the name of Sri Y.Ramulu Advocate mechanically in the preamble going by the record of the CMM Court wherein the said advocate appeared for the petitioner. Thus in my opinion as the MSJ Court record does not show that Sri Y.Ramulu filed any memo of appearance it follows that the petitioner cannot be said to have been given sufficient opportunity to argue his case. At one stage it was considered whether Sri Y.Ramulu Advocate should be called upon to give any affidavit as to whether or not he appeared for the petitioner in the MSJ Court but it is not necessary to call him to given an affidavit as his memo of appearance is not found in the MSJ Court record. Accordingly this point is decided in favour of the petitioner. 13. Then coming to the other point, it may be noted that this Court can independently decide the matter under this point, if the controversy purely relates to a legal position. It should however be noted that in this case, the CMM disbelieved the medical certificate filed by the second respondent herein giving its own reasons and the MSJ Court reversed that conclusion of the CMM Court giving in its turn its reasons. Thus the question is about the reliability or unreliability of the medical certificate filed by the second respondent. It may also be noted whether that question would fall within the purview of Section 397 Cr.P.C. is also a matter which should be decided after giving opportunity to the petitioner. Hence, I am of the opinion that this Court should not go into that aspect in this petition now. In the circumstances this point is not decided, and it is held that in view of the finding under point No.1 the matter should be remitted back to the MSJ Court for a fresh decision after giving opportunity to both sides. 14. Accordingly, for the aforesaid reasons, this petition is allowed and the impugned order of the MSJ Court is set aside and the matter is remitted back to the MSJ Court for fresh disposal after giving due opportunity to both sides. The MSJ Court shall dispose of the matter as expeditiously as possible. ______________________ N. RAVI SHANKAR, J 18th January, 2011. CVRK