Back
2023 Supreme(Online)(AP) 30309
HIGH COURT OF ANDHRA PRADESH
ADAPALLI BHAGYA LAKSHMI – Appellant
Versus
THE STATE OF ANDHRA PRADESH – Respondent
CRLRC/1222/2022
A Magistrate cannot dismiss a complaint for the complainant's absence on one day if the complainant shows sufficient cause for the absence.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 251 - DISMISSAL OF COMPLAINT - ABSENCE OF COMPLAINANT - SUFFICIENT CAUSE - RESTORATION OF COMPLAINT
Fact of the Case:
The complainant filed a private complaint under Section 138 read with 142 of the Negotiable Instruments Act. The Magistrate dismissed the complaint for the complainant's absence on the date of examination of the accused under Section 251 of the CrPC.
Finding of the Court:
The court held that the Magistrate erred in dismissing the complaint for the complainant's absence on one day and that the complainant had shown sufficient cause for his absence.
Issues: Whether the Magistrate erred in dismissing the complaint for the complainant's absence on one day.
Ratio Decidendi: The court relied on the Supreme Court judgment in Mohd. Azeem Vs. A. Venkatesh and another, which held that it is unjust to dismiss a case for the complainant's absence on one day and that the complaint should be restored if the complainant shows sufficient cause for the absence.
Final Decision: The court set aside the Magistrate's order dismissing the complaint and restored the complaint to the file of the Magistrate for disposal in accordance with law.
Order:
This Criminal Revision Case has been filed against the docket order, dated 27.05.2022, passed in C.C.No.1131 of 2019 by the learned Special Judicial Magistrate of First Class for trial of Prohibition and Excise Offences, Nellore.
2. A private complaint has been filed as against the second respondent herein in CC No.1131 of 2019 on the file of the learned Special Judicial Magistrate of First Class for trial of Prohibition and Excise Offences, Nellore, for the offence punishable under Section 138 read with 142 of the Negotiable Instruments Act. The learned Magistrate, dismissed the said complaint, by way of a docket order, dated 27.05.2022, which reads thus.
“Complainant called absent. No representation.
Advocate for complainant not present. Accused absent and this matter is coming for examination of accused under Section 251 of Cr.P.C., but neither parties nor their counsels appearing before this Court and represent the case since long and since transfer of this case to the file of this Court, hence it is deemed the complainant has no interest to proceed with the case. Hence this complaint is dismissed for default.”
3. Against the said order, the present Criminal Revision Case came to be filed by the complainant.
4. Learned counsel for the petitioner/complainant submits that the petitioner was suffering from post Covid-19 symptoms and taking treatment in KIMS Hospital, Nellore and non-appearance of the petitioner/complainant before the lower Court is neither wilfull nor deliberate, but for the reason stated above. He further submits that the learned Magistrate ought not to have dismissed the complaint for absence of the complainant on one day.
5. The Hon’ble Supreme Court in the case of Mohd. Azeem Vs.
1 A. Venkatesh and another , held, “In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant”
6. In view of the above judgment, I am also of the view that the cases cannot be dismissed for the reason that the complainant was absent for a single day. Further, the petitioner has shown sufficient cause for his absence.
7. In view of the above precedent, this Court is of the view that the impugned order, dated 27.05.2022, passed in C.C.No.1131 of 2019 by the learned Special Judicial Magistrate of First Class for trial of Prohibition and Excise Offences, Nellore, is set aside. C.C.No.1131
of 2019 is restored to the file of the learned Magistrate for disposal of the same in accordance with law, as expeditiously as possible.
8. The Criminal Revision Case, is accordingly, allowed.
9. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Revision Case shall stand closed.
_____________________
K. SREENIVASA REDDY, J Dated:02.01.2023 Nsr HON’BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Rivision Case No.1222 of 2022 Dated:02.01.2023 Nsr
