MANU/SC/1012/2002

Equivalent Citation: 2002(6)ALT40(SC), 2002(8)SCALE331, (2002)7SCC726

IN THE SUPREME COURT OF INDIA
Crl. A. No. 839 of 2002 (Arising out of SLP (Crl.) No. 1078 of 2002)
Decided On: 16.08.2002
Appellants: Mohd. Azeem
Vs.
Respondent: A. Venkatesh and Ors.
Hon'ble Judges/Coram:
M.B. Shah and D.M. Dharmadhikari , JJ.
Subject: Criminal
Acts/Rules/Orders:
Negotiable Instruments Act, 1881 - Section 138; Code of Criminal Procedure (CrPC) - Section 378(4), Code of Criminal Procedure (CrPC) -
Section 200
Prior History:
From the Judgment and Order dated 24.07.2001 in CRLA 923/01 of the High Court of A.P at Hyderabad
Case Note:
Criminal - Restoration of complaint - Cheque dishonoured - Offence committed punishable under Section 138 of the Negotiable
Instrumental Act, 1881 - Complaint dismissed - Appeal filed under 378(4) of the Code of Criminal Procedure, 1973 (Cr.P.C) - Appeal
dismissed - Held, learned Magistrate committed a error in acquitting the accused only for absence of the complainant on one day and
refusing to restored the complaint when sufficient cause for the absence was shown by the complainant.
JUDGMENT
1. Special Leave to Appeal is granted. We have heard learned counsels appearing for both the parties.
2. The petitioner filed a criminal complaint under Section 200 Criminal Procedure Code (for short 'Cr.P.C.') against respondent no. 1 in the court
of Metropolitan Magistrate, Secunderabad for an alleged offence under provision of Section 138 of Negotiable Instruments Act. The petitioner
was prosecuting the complaint diligently and had been attending the court of Magistrate on all dates excepting one because according to him he
wrongly noted the date for hearing. Due to his absence on one day fixed for trial, the Magistrate by Order dated 22.6.2001 dismissed his
complaint and acquitted the accused. Aggrieved by the Order of the Magistrate, the petitioner preferred an appeal under Section 378(4) of
Cr.P.C. to the High Court and the High Court by the impugned Order dated 24.7.2001 dismissed his appeal against which the petitioner has
approached to this court.
3. From the contents of the impugned Order of the High Court, we have noticed that there was one singular default in appearance on the part of
the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine
the witnesses. But that could not be a ground to dismiss his complaint for his appearance on one single day. The cause shown by the complainant
of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the
complaint.
4. 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 a 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.
5. The impugned orders dated 22.6.2001 of Metropolitan Magistrate and dated 24.7.2001 of the High Court respectively, are set aside. The
complaint is restored and learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of
the next date to be fixed in the case. The learned counsel appearing for the parties are directed to inform the parties to appear before the court of
Metropolitan Magistrate on or before 9th of September, 2002 to ascertain the date fixed by the trial Judge for the case.

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