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2024 DIGILAW 1370 (AP)

Tikka Sivarama Naga Satish v. Shaik Syed Baji

2024-09-26

VENKATA JYOTHIRMAI PRATAPA

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JUDGMENT : Venkata Jyothirmai Pratapa, J. Since the issue involved and the parties are one and the same, with the consent of the parties, these Criminal Appeals are being disposed of by this common Judgment. 2. The Complainant is the Appellant and the Accused is Respondent No.1 in these Appeals. 3. For the sake of convenience, the parties will be referred to as they are arrayed in Calendar Case. Crl.A.No.585 of 2023 4. Impugning the Judgment dated 25.11.2022 passed in CC No.2374 of 2018 on the file of the Court of II Additional Judicial First Class Magistrate, Rajamahendravaram, the present Criminal Appeal has been filed by the Appellant/Complainant. 5. (a) The brief facts of the case are that the Accused borrowed an amount of Rs.3,60,000/- from the Complainant on 08.05.2016 for the purpose of discharging sundry debts and their family expenses. Accused and his wife jointly executed a demand promissory note in favour of the Complainant. On several demands, Accused has issued a cheque bearing No.201890 dated 18.12.2016 for Rs.50,000/- drawn on State Bank of Hyderabad, Thadithota Branch, Rajamahendravaram towards part payment of the amount taken from the Complainant. (b) When the Complainant presented the said cheque to his banker, State Bank of Hyderabad, Tilak Road, Rajamahendravaram for collection, the same was returned with a Memo dated 28.12.2016 with an endorsement “Insufficient Funds” in the account of the Accused. (c) The Complainant got issued a registered notice on 17.01.2017 to the Accused demanding to repay the said amount. Having received the said notice, on 21.01.2017, Accused gave a reply with false and untenable grounds. (d) A private Complaint came to be filed by the Complainant against the Accused for the offences Sections 138 and 142 of the Negotiable Instruments Act (for short "the N.I.Act."). The Learned II Additional Judicial First Class Magistrate, Rajamahendravaram, has numbered the case as CC No.2374 of 2018 and taken cognizance of the offences. Crl.A.No.586 of 2023 6. Impugning the Judgment dated 09.01.2023 passed in CC No.2366 of 2018 on the file of the Court of II Additional Judicial First Class Magistrate, Rajamahendravaram, the present Criminal Appeal has been filed by the Appellant/Complainant. 7. (a) The brief facts of the case are that the Accused borrowed an amount of Rs.3,60,000/- from the Complainant on 08.05.2016 for the purpose of discharging sundry debts and their family expenses. 7. (a) The brief facts of the case are that the Accused borrowed an amount of Rs.3,60,000/- from the Complainant on 08.05.2016 for the purpose of discharging sundry debts and their family expenses. Accused and his wife jointly executed a demand promissory note in favour of the Complainant. On several demands, Accused has issued a cheque bearing No.208191 dated 29.12.2016 for Rs.1,50,000/- drawn on State Bank of Hyderabad, Thadithota Branch, Rajamahendravaram towards part payment of the amount taken from the Complainant. (b) When the Complainant presented the said cheque to his banker, State Bank of Hyderabad, Tilak Road, Rajamahendravaram for collection, the same was returned with a Memo dated 29.12.2016 with an endorsement “Insufficient Funds” in the account of the Accused. (c) The Complainant got issued a registered notice on 17.01.2017 to the Accused demanding to repay the said amount. Having received the said notice, on 21.01.2017, Accused gave a reply with false and untenable grounds. (d) A private Complaint came to be filed by the Complainant against the Accused for the offences Sections 138 and 142 of the Negotiable Instruments Act (for short "the N.I.Act."). The Learned II Additional Judicial First Class Magistrate, Rajamahendravaram, has numbered the case as CC No.2366 of 2018 and taken cognizance of the offences. 8. The grievance of the Complainant/respondent No.1 is that when the above calendar cases came up for continuation of chief examination of P.W.1 conditionally, he was called absent on that day and the learned Trial Judge vide Judgment dated 25.11.2022 in CC No.2374 of 2018 and vide Judgment dated 09.01.2023 in CC No.2366 of 2018 eschewed the chief affidavit of P.W.1 and the complaint was dismissed for default. The said orders are impugned in these Criminal Appeals, which were filed seeking to set aside the same and to award compensation to the Complainant in both the cases. 9. Heard Sri Siva Prasad Reddy Venati, learned counsel for Appellant, Sri Bolla Venkata Rama Rao, learned counsel for respondent No.1 and Ms. K. Priyanka Lakshmi, learned Assistant Public Prosecutor appearing for respondent No.2/State. Perused the material on record. 10. Learned counsel for appellant would submit that these calender cases arose out of the dishonor of cheques issued by the Accused. Heard Sri Siva Prasad Reddy Venati, learned counsel for Appellant, Sri Bolla Venkata Rama Rao, learned counsel for respondent No.1 and Ms. K. Priyanka Lakshmi, learned Assistant Public Prosecutor appearing for respondent No.2/State. Perused the material on record. 10. Learned counsel for appellant would submit that these calender cases arose out of the dishonor of cheques issued by the Accused. Learned counsel further would submit that when the matter is coming for continuation of chief examination of P.W.1, he could not attend on the given date due to his severe health issues and therefore, he was called absent and thereby the impugned orders have been passed by the learned Trial Judge. Learned counsel submits that a direction may be given to the Trial Court to dispose of the cases by giving opportunity to the appellant to pursue these matters for which no prejudice would be caused to the accused. 11. Per contra, learned counsel for respondent No.1 would submit that the Learned Trial Judge has rightly dismissed the calendar cases for default of the Complainant on two occasions and that there are no merits to allow the criminal appeals and the same are deserve to be dismissed. 12. Learned Assistant Public Prosecutor would submit that the Court may pass appropriate orders. 13. Considering the submissions made and a fair look at the impugned Judgments would indicate that on the given date, complainant was absent and there was no representation and on that ground, P.W.1's chief examination continuation conditionally was eschewed and dismissed the cases for default. 14. At the time of hearing, learned counsel for Appellant brought to the notice the Court that a medical certificate filed to the effect that complainant was suffering from febrile disorder and viral fever and advised to take rest from 23.11.2022 to 28.11.2022. In that view, in the interest of justice, it is apposite to give a fair opportunity to the Appellant/Complainant to pursue the above calendar cases. 15. At this juncture, learned counsel for respondent No.1 submitted that the Appellant/Complainant never evinced any interest in prosecuting the cases and the Court may pass appropriate orders. 16. Considering the submissions made and having regard to the facts of the case, these Criminal Appeals are allowed and remitted back the matters to the Trial Court. 15. At this juncture, learned counsel for respondent No.1 submitted that the Appellant/Complainant never evinced any interest in prosecuting the cases and the Court may pass appropriate orders. 16. Considering the submissions made and having regard to the facts of the case, these Criminal Appeals are allowed and remitted back the matters to the Trial Court. CC Nos.2366 and 2374 of 2018 on the file of the Court of II Additional Judicial Magistrate of First Class, Rajamahendravaram, East Godavari District are restored to the file. Learned counsels appearing for both parties are directed to instruct their respective parties to appear before the Trial Court on 25.10.2024 and the learned Trial Judge shall dispose of the Calendar Cases as expeditiously as possible without granting any adjournment in a casual way by mere asking. Further, in the interest of justice, Appellant/Complainant is directed to pay Rs.5,000/- (Rupees five thousand only) each in the two cases to the respondent No.1/Accused and file acknowledgement/receipt before the Trial Court in proof of the same. No costs. As a sequel, pending applications, if any, shall stand closed.