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Andhra High Court · body

2025 DIGILAW 323 (AP)

Kolla Lokanadha Rao, S/o. Venkata Swamy v. Tatiparti Venkata Reddy, S/o. Anji Reddy

2025-02-20

Y.LAKSHMANA RAO

body2025
ORDER : (Y. LAKSHMANA RAO, J.) The Revision has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the order passed by the learned Additional Judicial Magistrate First Class, Addanki in Crl.M.P.No.186 of 2009 in C.C.No.208 of 2007 dated 30.12.2008, whereby and whereunder the miscellaneous petition filed for restoration of C.C.No.208 of 2007 on to the file, was dismissed. 2. The revisionist being the complainant filed a complaint under Section 190 read with 200 of ‘the Cr.P.C.,’ for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’). It was the case of the revisionist that the respondent No.1/accused issued two cheques for an amount of Rs.2,00,000/- and Rs.1,00,000/- respectively, for discharge of legally enforceable debt. The learned Magistrate in the course of the enquiry having waited for several times for the presence of the complainant, ultimately, on 30.12.2008, dismissed the complaint for want of the presence of the revisionist for default/non-prosecution of the complaint and the respondent No.1 was discharged under Section 249 of ‘the Cr.P.C.’ 3. Feeling aggrieved by the said order, the revisionist had filed Crl.M.P.No.186 of 2009 before the learned Magistrate and the learned Magistrate dismissed the miscellaneous petition. The relevant paras of the impugned order are beneficial to be extracted as under: “3. Heard and perused the record as well as the contents of the petition. It could be seen from docket order of the C.C.No.208 of 2007 that since from the date of filing the complaint, the petitioner/defacto-complaint remained absent in attending the Court except on 13.04.2007 on which date his sworn statement was recorded by this Court. On 30.12.2008 there is no report from the petitioner/defacto-complaint either personal or through his counsel. In such circumstances, this Court dismissed the complaint for the default of the complainant and the accused was discharged U/s.249 of Cr.P.C. At this juncture, the petitioner/defacto complainant filed this present petition seeking restoration of his case. It is the settled law that once the complaint was dismissed by the Sub0ordinate Criminal Courts it has become Functus Officio and there is no provision in Criminal Procedure Code, 1973 to enable the sub- ordinate Criminal Court to exercise inherent powers. As such, this Court has no jurisdiction or power to restore the complaint and to review its own order. As such, this Court has no jurisdiction or power to restore the complaint and to review its own order. As such, the petition of the petitioner is liable to be dismissed. 4. I agree with the finding of the judgment relied by the petitioner between Danvanti Mutual Funds Limited v/s. State of Haryana and another reported in 2007 Crl.L.J2596. In support if his plea but the factual matrix of the case in that petition and the case in hand are not one and same as such, I am of the opinion that the above citation is not applicable to the present case. Basing on the above all discussion this petition is dismissed.” 4. Sri G. Vasantha Rayudu, learned counsel for the revisionist while reiterating the grounds of the revision argued that the learned Trial Court failed to consider that the matter was coming for the examination of the accused under Section 251 of ‘the Cr.P.C.,’ so the presence of the complainant was not necessary. The order of dismissal of the complaint for non-appearance of the complainant is perverse and vitiated by illegalities. If the order passed by the learned Magistrate is sustained, there will be miscarriage of justice, irreparable loss and hardship to the revisionist. 5. It is further argued that the case was called on 30.12.2008, on which date, the presence of the complainant was not necessary, and when the accused was absent for his examination, the learned Magistrate ought not to have dismissed the complaint. The learned counsel for the revisionist relied on the decision in Danvanti Mutual Funds Limited v. State of Haryana , [2007 CRI.L.J 2596] and submitted that the learned Magistrate ought not to have dismissed the complaint for non-appearance of the complainant on the day when the case was coming for the examination of the revisionist under Section 251 of ‘the Cr.P.C.’ 6. Per contra, Sri K.Sandeep, the learned Assistant Public Prosecutor argued that number of opportunities were given to the revisionist/complainant to appear before the Court and represent the matter, whereas, the complainant had not evinced any interest in prosecution of the complaint. The learned Magistrate, had rightly dismissed the complaint under Section 249 of ‘the Cr.P.C.,’ when the complainant had continuously, for one reason or other, not co-operated with the learned Magistrate in conducting the trial. The learned Magistrate, had rightly dismissed the complaint under Section 249 of ‘the Cr.P.C.,’ when the complainant had continuously, for one reason or other, not co-operated with the learned Magistrate in conducting the trial. The right to speedy justice as enshrined under Article 21 of the Constitution of India is quite applicable to the 1 st respondent/accused also. 7. The learned Assistant Public Prosecutor further argued that the revision has been filed not challenging the order dated 30.12.2008 whereunder, the learned Magistrate dismissed the complaint under Section 249 of ‘the Cr.P.C,’ but an order passed by the learned Magistrate dated 03.03.2009 dismissing the petition filed by the revisionist for restoring the complaint on its file. The learned Assistant Public Prosecutor, eventually, submits that there was neither perversity in the impugned order nor material irregularity, therefore, the revision has to be dismissed. 8. Thoughtful consideration is bestowed on the arguments advanced by the learned Counsel for both sides. I have perused the entire record. 9. Now the point for consideration is: “Whether the judgment in C.C.No.208 of 2017 dated 03.03.2009, passed by the learned Additional Judicial I class Magistrate, Addanki, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 10. As rightly pointed out by the learned Assistant Public Prosecutor, the impugned order was an order passed by the learned Magistrate dismissing the restoration petition stating that the learned Magistrate had no power to restore the complaint and to review his own order. It is trite that the Courts administering criminal laws have no power to review its order, unlike the Civil Courts exercising their powers conferred under Section 151 of Code of Civil Procedure, 1908. Of course, the Criminal Courts have got limited power to correct clerical and arithmetic errors that may occur in the judgments as per Sec 362 of ‘the Cr.P.C.’ 11. Against the order passed by the learned Magistrate dismissing the petition which was filed to review or restore the earlier order, the revision is not maintainable, as such the learned Magistrate had rightly dismissed the Crl.M.P.No.186 of 2009. No revision was filed challenging the order dated 30.12.2008 passed under Section 249 of ‘the Cr.P.C’. There is no perversity or material error or irregularity in the impugned order passed by the learned Magistrate. 12. No revision was filed challenging the order dated 30.12.2008 passed under Section 249 of ‘the Cr.P.C’. There is no perversity or material error or irregularity in the impugned order passed by the learned Magistrate. 12. It has to be further observed, as it is not out of place to mention, that the complainant is expected to be vigilant in prosecuting his case. The complainant for quite number of times was absent before the learned Magistrate and had not co-operated with the proceedings in the trial. Further, the age of the accused as per the averments of the complaint filed under Section 190 read with 200 of ‘the Cr.P.C.,’ was shown as 50 years in the year of 2007. Now his age would be about 67 years. Right to speedy trial is a fundamental right of the 1 st respondent/accused as guaranteed under Article21 of the Constitution of India. 13. The alleged occurrence took place about 24 years ago. The Respondent No.1 has been facing mental agony and trauma of the protracted prosecution and suffered mental harassment for a long period of 24 years. The right to speedy trial is a fundamental right as per the decision of the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar , [ AIR 1979 SC 1360 ] . This right includes speedy disposal of appeals. In addition to the appeals, the right to a speedy trial also includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar , [2000 (1) BLJR 37] 14. Further, it is not out of context or place to mention that the learned Magistrate, as seen from the docket proceedings, on several occasions mentioned that the revisionist, being the complainant, had not chosen to appear before him for prosecuting his complaint. The following are the instances, where the revisionist had not present, rather indiligent before the learned Magistrate: “10.01.2007 Complainant absent, petition filed and allowed for recording sworn statement. Call on 07.02.2007. 22.02.2007 Complainant absent, petition filed and allowed, for recording sworn statement. Call on 13.03.2007. 13.03.2007 Complainant absent for sworn statement, call on 13.04.2007. 20.04.2007 Complainant absent call on 03.05.2007. The following are the instances, where the revisionist had not present, rather indiligent before the learned Magistrate: “10.01.2007 Complainant absent, petition filed and allowed for recording sworn statement. Call on 07.02.2007. 22.02.2007 Complainant absent, petition filed and allowed, for recording sworn statement. Call on 13.03.2007. 13.03.2007 Complainant absent for sworn statement, call on 13.04.2007. 20.04.2007 Complainant absent call on 03.05.2007. 23.05.2007 Complainant absent, petition filed and allowed call on 08.06.2007 08.06.2007 Complainant absent, P.O is on training the case is reposted to 08.08.2007 08.08.2007 Complainant is absent, petition filed and allowed, perused the records, taken on file against the accused for the offence u/s.138 N.I.Act. Issue summons to the accused call on 19.09.2007. 05.11.2007 Complainant absent, petition filed and allowed, issue fresh summons to the correct address of the accused call on 02.01.2008. 02.01.2008 S/s of accused by post returned unserved as he was not residing in the village presently and whereabouts are not known. Accused called absent, complainant called absent, petition filed and allowed issue fresh summons to the accused with correct address call on 28.02.2008 11.06.2008 Complainant called absent, petition filed and allowed. Summons returned unserved. Issue fresh notice through court and R.P on payment of process call on 11.07.2008 11.08.2008 Accused called absent, petition filed and allowed Sri V.A.R filed memo of appearance for accused call on 15.09.2008 15.09.2008 Complainant called absent, petition filed and allowed, accused called present copies of documents furnished to accused call on 21.10.2008 for examination. 21.10.2008 Complainant called absent, petition under Section 256 Cr.P.C filed and the same is allowed. Accused is present. Call on 30.12.2008.” 15. And, ultimately on 30.12.2008 also the complainant was absent. No doubt, on 30.12.2008, when the case was coming for examination of the accused under Section 251 of ‘the Cr.P.C.’ the accused was not present. Therefore, a petition on his behalf was filed and it was allowed. Whereas, there was neither representation on behalf of the complaint/revisionist nor the complaint himself was present nor any application was filed seeking for condoning the absence of the complainant before the learned Magistrate. It is manifest from the record that the learned Magistrate, having waited for several months, was vexed with the callous attitude of the complainant and constrained to dismiss the complaint under section 249 of ‘the Cr.P.C.’ 16. It is manifest from the record that the learned Magistrate, having waited for several months, was vexed with the callous attitude of the complainant and constrained to dismiss the complaint under section 249 of ‘the Cr.P.C.’ 16. It is relevant to mention the reasons assigned by the revisionist/complainant in the petition filed by him to review the order dated 30.12.2008. The relevant portion is extracted as under: “It is submitted that the petitioner is complainant in the case. The case is posted today for examination of accused. My Advocate entrusted the case to another advocate due to heavy work, he is not represented in call-work by mistakenly. After my arrival I came to know the complaint dismissed and accused is discharged. I was present at the court premises and waiting for the case of my counsel for my appearance in Court. There are no willful latches on my part in not attending before the Hon’ble Court at the time of call-work”. 17. On a careful perusal of the above averments of the petition, it could easily be held that even if the counsel for the complainant before the learned Trial Court was absent and he entrusted the matter to the another counsel, the complainant must have been cautious and vigilant, when the case was called. When the case was called, the complainant was absent. Several times this had happened. Therefore, learned Magistrate had rightly dismissed the complaint under Section 249 of ‘the Cr.P.C.,’ and discharged the 1 st respondent. Therefore, against an order passed by the learned Magistrate dismissing the petition which was filed to review or restore the earlier order, this revision is not maintainable as the criminal Courts have no power to review or restore earlier orders. The decision relied on by the learned counsel for the revisionist in Danvanti Mutual Funds Limited supra is not applicable to the case on hand as the revision is not filed challenging the order passed by the learned Magistrate under Section 249 of ‘the Cr.P.C.,’ but it is against the order dated 30.12.2008 dismissing the review petition. There are no merits in the revision. 18. As a result, the Criminal Revision Petition is dismissed. No order as to costs.As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed.