Nuthikattu Siva Prasad vs The State Of Ap & Anr.

Learned counsel for the Appellant/Complainant submits that the Accused has not traced, even by the police. Hence, he could not serve notice on the Accused and left the matter to the Court.

The Court perused the record and it reveals that the Appeal was filed challenging partly allowing of the Appeal by the II Additional Sessions Judge, Guntur, wherein the sentence of imprisonment of one (1) year imposed by the Magistrate is set aside but maintained imposition of fine of Rs.10,000/- under Section 138 of Negotiable Instruments Act.

The Proceeding Sheets reveal that the Complainant could not serve the notice on the Respondent No.2/Accused for all these years despite opportunities. It is also submitted by the learned Counsel that the Accused could not be traced to serve the sentence.

The settled law is that the Criminal Appeals shall be disposed on merits (see Hon’ble Full Bench Judgment of Hon’ble Supreme Court of India in Bani Singh and others vs State of U.P.^{11.(1996) 4 SCC 720}, (1996)4 SCC 720), but when the Appellant could not service on the Accused for all these years, this Court could not decide the Appeal on merits without giving him an opportunity to submit hearing.

Thus, this Court could not decide the Appeal on the impugned order in the absence of service of notice on Respondent No.2/Accused. Thus, the Appeal is liable not only to be dismissed for non-prosecution by invoking inherent powers, but also to be held that the Appellant contributed to the long pendency of the Appeal for all these years by failing to pursue service of notice on the Accused. Thus, the Appeal is dismissed for non-prosecution.

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