D V N SATYANARAYANA Vs. NAMBURI VENKATA NARAYANA

JUDGEMENT

(1.) This is an appeal challenging the order of acquittal of the Respondent No. 1 vide judgment and order dated 1-7-1994 in C.C.No.609 of 1994 on the file of the Court of Second Metropolitan Magistrate, Vijayawada. The appellant is the complainant. He filed a complaint under Section 200 of Cr.P.C. alleging that the respondent has committed an offence under Section 138 of the Negotiable Instruments Act on the ground that the cheque issued by the respondent for an amount of Rs.20,000/- vide cheque bearing No.058796, dated 3-9-1992 has bounced back. The said complaint was posted on 1-7-1994 on which date the appellant/complainant remained absent and accordingly by the impugned order dated 1-7-1994 the II Metropolitan Magistrate, Vijayawada has acquitted the accused. Being aggrieved by the said order the complainant has come up to this Court by way of this appeal.

(2.) The learned Counsel appearing for the appellant contended that the impugned order is illegal and without jurisdiction and the same is liable to be set-aside. On the other hand the learned Counsel for the respondent supported the order. In order to appreciate the rival contentions I am extracting the one line impugned order as under:

(3.) The learned Counsel for the appellant submitted that the appellant has filed an affidavit in support of his contention seeking leave of the Court to prefer this appeal and in that affidavit he has stated that on 1-7-94 his Counsel was engaged in another Court and he could not make his representation on his behalf when this case was called. He also submitted that in the affidavit it is further stated that the appellant could not come to the Court by the time when the matter was called and he came to the Court a bit late and in the meanwhile the case was called and by noting the appellant as absent the accused has been acquitted. He submitted that though this feet is not stated in the appeal grounds but the affidavit has got to be read along with the appeal grounds and having regard to the circumstances urged in the affidavit it is clear that the absence of the appellant was not intentional. At any rate, according to the affidavit the appellant appeared before the Court later in the day. On the other hand the Counsel for the respondent submitted that even though no counter is filed to this affidavit filed for special leave petition, since that was before admitting the appeal and the respondent was not required to file counter at that stage, even then this affidavit does not show the reason why the appellant was absent when the case was called. He further submitted that the allegation made by the appellant in the said affidavit is false because if he were to be present later in the day he could have filed one application before the same Court on the same day explaining the reasons for the delay in appearing before the Court that also he has not done, and his statement before this Court that he appeared before the Court later is not correct and there is absolutely no material to that effect. He further submitted that even assuming that the appellant came to the Court below later even then the impugned order does not call for interference since the appellant was not present when the case was called in terms of Section 256 of Cr.P.C. He relied upon the Division Bench judgment of this Court in a decision in "P.Thimmappa v. P.C.Thimmappa" (1) AIR 1969 AP 222 in support of his contention that the complainant shall be present when the case is called and appearing before the Court later in the day would have a very little consequence on the order of acquittal. The learned Counsel for the appellant further submitted that at any rate the appellant can show sufficient causes before this Court in this appeal for his absence on 1-7-94 in view of the said judgment and also in view of another Division Bench judgment of this Court in a decision in "Papi Reddy v. LakshmiNarayana" (2) 1969(1) An.WR 305 and accordingly he submitted that it is a fit case for allowing the appeal.