IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE jl PRESENT " HONOURABLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 498 OF 2024 Appeal under Section 419(4) of BNSS (under Section 378(4) of Cr.P.C), against the Judgment dated 09.05.2024 in CC. No. 227 of 2021 on the file of the Junior Civil Judge - Cum - Judicial Magistrate of First Class, Salur, Vizianagaram District. Between; Akula Venkata Rao, S/o.Late Narayana Swamy, Aged about 45 residing at B C Colony, Arikathota Village and Post, Ramabhadrapuram Mandal, Vizianagaram District. years. ...Appellant/Complainant AND 1. Sk Raheem @ Karati, S/o.Basha, Aged about 46 years. Working in Health Department, Behind Government Hospital, Kaikaluru, Kaikaluru Mandal, Krishna District. (Accused) 2. The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Judicature at Amaravathi. ...Respondents Counsel for the Appellant : Sri Sivaprasad Reddy Venati Counsel for Respondent No.1: Sri M P V N V Sastry Counsel for Respondent No.2: Public Prosecutor The Court made the following; t; APHC010325832024 IN THE HIGH COURT OF ANDHRA AT AMARAVATI (Special Original Jurisdiction) PRADESH [3396] MONDAY THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT the honourable dr justice VENKATA JYOTHIRMAI PRATAPA ■CRIMINAL APPEAL NO- Between: VILLAGE AGED AT B C COLONY, RAMABHADRAPURAMARIKATHOTA AND POST, VIZIANAGARAM DISTRICT. MANDAL, ...APELLANT AND 1.SK RAHEEM KARATI, S/0 BASHA IN HEALTH DEPARTMENT AGED ABOUT 46 YEARS BEHIND GOVERNMENT KAIKALURU MANDAL, KAIKALURU, DISTRICT. (ACCUSED) ^ STATE OF ANDHRA PRADESH REP. BY IT9 PROSECUTOR, HIGH COURT OF JUDICATURE AT KRISHNA PUBLIC AMARAVATHI. ...RESPODENT(S): Counsel for the Appellant: 1.SIVAPRASAD REDDY VENATI Counsel for the Respondent(S): 1.M P VN V SASTRI 2. PUBLIC PROSECUTOR The Court made the following: JUDGMENT: Impugning the judgment dated 09.05.2024 passed in C.C.No.227 of 2021 by the Junior Civil Judge-cum-Judicial Magistrate of First Class, Salur for the offence under Sections 138 read with 142 of the Negotiable Instruments Act, 1881 \ the Appellant/Complainant preferred the present appeal. For short ‘the N.I.Act’ 2 Heard Sri Sivaprasad Reddy Venati, learned counsel for the Appellant. Though notice was sent to Respondent No.1/Accused, none appeared on his Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor is in 2. behalf. attendance. Learned counsel for the Appellant would submit that C.C.No.227 of 3. 2021 was dismissed for default for the absence of the Appellant/Complainant before the trial Court. Learned counsel would further submit that the learned Magistrate failed to appreciate that the private complaint is filed to recover an amount of Rs.9,00,000/- and in view of the dismissal of the complaint for default, the Complainant will be put to irreparable loss. Learned counsel would finally submit that the impugned order of dismissal is liable to be set aside. Learned Assistant Public Prosecutor would submit that Court may pass 4. appropriate orders. Admittedly, the Complainant filed a private complaint in C.C.No.227 of 2021 on the file of the Court of Junior Civil Judge-cum-Judicial Magistrate of First Class, Salur for the offence under Sections 138 and 142 of the N.I.Act for the dishonour of cheque issued by the Accused. The learned Magistrate vide Order dated 09.05.2024 dismissed the complaint for default. For ready 5. reference the order is extracted hereunder. “Complainant called absent. No representation. Complainant called absent since long adjournments, hence, the complainant not interested to continue his case, dismissed for default. ” Hence, this case is . 6. A this stage, it is apposite to extract Section 256 Cr.P.C which reads as under: 256. Non-appearance or death of complainant.—(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the comp^inant is not necessary, the Magistrate may, dispense with his attendance and proceed with the (2) The provisions of subsection (1) shali, so far as may be, apply ateo ot cases where the non-appearance of the complainant is due to his death. case. 7. The above provision affords some deterrence against the dilatory tactics on the part of a Complainant who set the law into motion through his complaint. However, that does not mean, if the Complainant is absent, the Court has a duty to dismiss the complaint for default or acquit the Accused. Since the Complainant has approached the Court for recovery of amount under Section 138 of N.I.Act, a fair opportunity has to be provided to him, to prove his case by adducing evidence. In view of the judgment of the Hon’ble Apex Court in BLS Infrastructure Limited vs. Rajwant Singh and Others^ merely because of the non-appearance of the Complainant on some occasions, the complaint cannot be dismissed for default. In the present case, the order passed by the learned Magistrate, is bereft of any reasons. As such, the order of dismissal passed by the learned Magistrate, is liable to be set aside. ^ (2023) 4 see 326 4 In the result, the Criminal Appeal is allowed setting aside the Order dated 09.05.2024 passed in C.C.No.227 of 2021 on the file of the Court of Junior Civil Judge-cum-Judicial Magistrate of First Class, Salur. The proceedings in the case shall stand restored and the learned trial Judge shall proceed further in C.C.No.227 of 2021 in accordance with law. Pending miscellaneous petitions, if any, shall stand closed. 8. Sd/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SEOTtON OFFICER To The Civil Judge (Junior Division) - Cum - Judicial Magistrate of First Class, Salur, Vizianagaram District. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh, Amaravathi[OUT] One CC to Sri Sivaprasad Reddy Venati, Advocate [OPUC] One CC to Sri M P V N V Sastry, Advocate [OPUC] The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi. Three CD Copies 1. 2. 3. 4. 5. 6. TK sree <* HIGH COURT V V:. DATED:27/01/2025 JUDGMENT ANOfi^ CRLA.No.498 of 2024 ro 5 1 2 FEB 2C25 1^ , Current Section . ^ ALLOWING THE CRIMINAL APPEAL