Research › Search › Judgment

Andhra High Court · body

2004 DIGILAW 1067 (AP)

Kommula Karuna v. State Of A. P.

2004-09-24

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD the Counsel for the petitioner- appellant and also the learned Additional public Prosecutor. ( 2 ) THIS Criminal M. P. is filed under sections 5 and 14 of the Limitation Act, 1963, praying for condonation of delay of 1105 days in filing appeal against an order dated 7-3-2001 in C. C. No. 794 of 1999 on the file of ii! Additional Judicial Magistrate of First Class, warangal, ( 3 ) THE facts, in brief, are as hereunder: the case of the petitioner-appellant is that the 2nd respondent borrowed a sum of rs. 3,00,000/- under a promissory note date 27-6-1999 to repay the same with interest and he did not repay the same in spite of repeated requests, but he issued a cheque dated 31-8-1999 drawn on Bank of india Branch, Warangal, for a sum of rs. 3,12,000/- which includes principal and interest and the cheque issued by 2nd respondent was returned as unpaid on its presentation for its encashment through the petitioner s Banker and thereupon, the petitioner issued a legal notice demanding the 2nd respondent to pay the said amount. The 2nd respondent having received the said notice issued a reply by way of telegram denying the transaction. In such circumstances, the petitioner filed C. C. No. 794 of 1999 on the file of III Additional judicial Magistrate of First Class, Warangal, under Section 138 of Negotiable Instruments act. The learned Magistrate had taken cognizance of the complaint and issued process to the 2nd respondent. The 2nd respondent appeared, but however, due to the misfortune of the petitioner, the matter was dismissed n 7-3-2001 on the ground that the petitioner was not present when the matter was called. ( 4 ) IT is stated that the petitioner being a lady and not being well versed with the Court proceedings, she was just taking the advise of the Counsel and she was not advised by her Counsel to be present on every date of hearing and for that reason, the mistake was committed and she was not present on 7-3-2001 and as such, the matter was dismissed for default. It is also stated that the 2nd respondent is a Government employee and having received the amount under a promissory note and having issued the cheque, now he is not interested in seeing the debt due to the petitioner is duly discharged. It is also stated that the 2nd respondent is a Government employee and having received the amount under a promissory note and having issued the cheque, now he is not interested in seeing the debt due to the petitioner is duly discharged. It is also stated that the petitioner, on the advise of her Counsel, filed criminal Appeal No. 101 of2001 on the file of iv Additional District Judge, Warangal, against the order dated 7-3-2001 in C. C. No. 794 of 1999 and the said appeal was dismissed on the ground that an appeal as against such an order would lie to this Court and not to the Court of Session and thus, on the ground of maintainability, the appeal was dismissed. Thus, she had bona fidely prosecuted the appeal before the IV Additional district Judge, Warangal and hence, the delay. ( 5 ) IT is also brought to the notice of this court that the Criminal Appeal No. 101 of 2001 was entertained and the same was kept for sufficiently a long time pending on the file of IV Additional District Judge, warangal. It is no doubt true that it is the mistake on the part of both the petitioner and the Counsel, who advised the petitioner to prefer appeal to the Court of Session, instead of preferring appeal to this Court i. e. High court. It is also equally essential to note that as far as the aspect of maintainability is concerned, the Court is alsoexpected to look into while numbering the matters or at least when the matters are adjourned repeatedly. But surprisingly, for sufficiently a long time, the matter was adjourned from time to time and ultimately on 10-02-2004, the learned Judge dismissed the Criminal Appeal no. 101 of 2001 as not maintainable. ( 6 ) FOR the wrong advise given by the counsel and also in view of the fact that the appeal had been entertained by the Court of session, may be by mistake and the same was kept pending for sufficiently a long time and taking into consideration the overall facts and circumstances and also the fact that the matter was not decided on merits even by the court of first instance, the petitioner-appellant cannot be penalized. ( 7 ) TAKING the peculiar facts and circumstances into consideration, the delay in preferring the present appeal is hereby condoned.