Mukkala Rajendra Prasad vs Seethina Jaya Bharathi & Anr.

The Appeal is filed by the Complainant against the judgment passed by the Chief Metropolitan Magistrate, Vijayawada, dated 02.12.2009 in C.C.No.822 of 2008, challenging dismissing of the Complaint for Complainant’s non-appearance and discharging the Accused under Section 138 of Negotiable Instruments Act,

The learned counsel for the Appellant/Complainant submits that the Complainant was in the U.S.A. and that is the reason he could not appear before the Trial Court, he also filed an application under Section 309 of Cr.P.C. requesting to adjourn the case. But the Trial Court dismissed the application, and finally sought to give a final opportunity to invite the judgment on merits and sought to allow the Appeal on terms.

None appeared for the Respondent No.1/Accused.

This Court perused the order, the Trial Court recorded that the case was posted with a conditional order but the Complainant was absent, and the explanation that he was abroad and he could not attend and file evidence affidavit. Also recorded filing of an application under Section 309 of Cr.P.C. with the averments that he was abroad. Also recorded that more than 3 months’ time was given to the Complainant and atleast he would have sent evidence affidavit and finally held the Complainant was not diligent enough in prosecuting the case and the Accused was acquitted under Section 256 of Cr.P.C.

The material on record reveals that the Trial Court also recorded that the Appellant/Complainant was in USA, which shows that he could not attend before the Trial Court despite opportunities, but filed an application under Section 309 of Cr.P.C. to adjourn the matter. The Trial Court ought to have entertained the Petition with condition and costs as to give opportunity to dispose the case on merits. The observation of the Trial Court that the Complainant would have sent at least evidence affidavit, this aspect also ought to have considered by the Trial court as the Complainant was in U.S.A. and it is cumbersome process to go for affidavit attestation in U.S.A. and send the same to India.The explanation offered by the Appellant that he was abroad and he could not file his evidence is convincing.

This Court posed a query to the Appellant that the Complainant did not appear before the Trial Court and that led to filing of this appeal and consumption of this much time, for which he offered Rs.20,000/- to show his bonafides.

This Court satisfied the absence of the Complainant is not deliberate and also he also filed application under Section 309 of Cr.P.C. seeking adjournment and diligently pursuing the case before the Trial Court. The Complainant also offered costs to show his bonafides. Thus, the Court inclined to hold that the Complainant could make out the case, but none appeared for the Accused to object the Appeal. Thus, the Court inclined to set aside the judgment dated 02.12.2009 in C.C.No.822 of 2008, subject to payment of Rs.20,000/- by the Appellant/Complainant to the A.P. State Legal Services Authority within two weeks from today. The amount so deposited may be spent in Hostels/Schools meant for SC, ST and BC children. On payment, the Complainant is directed to appear before the Trial Court on 21.09.2026 and assist the Trial Court for expeditious disposal of the case, preferably within three months from the date of his appearance.

Accordingly, the Criminal Appeal is allowed.

As a sequel, the pending Interlocutory Applications, if any, shall stand closed.