IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.818 OF 2005 Between: M/s. Thirumala Agro Agencies, Rep. by its Proprietor M. Suresh Babu. …. Appellant And State rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …. Respondents THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.818 OF 2005 JUDGMENT: This Criminal Appeal is filed by the complainant M/s. Thirumala Agro Agencies, represented by its Proprietor M. Suresh Babu, against the judgment dated 08-02-2005 in C.C. No.425 of 2003, on the file of the I Additional Judicial Magistrate of First Class, Warangal wherein the said complaint filed by the complainant was dismissed and the accused was acquitted on the ground that the complainant was absent and no representation was made and costs were also not paid. 2. Heard the learned counsel for the appellant and the respondents and perused the records. 3. The appellant herein – complainant filed the complaint against respondent No.2 herein – accused alleging offence under Section 138 of the Negotiable Instruments Act, 1881 and the same was taken cognizance in C.C. No.425 of 2003 on the file of the I Additional Judicial Magistrate of First Class, Warangal. On 08-02- 2005, the complaint was dismissed on the ground that the complainant was absent and no representation was made and costs imposed earlier were also not paid. 4. It is stated in the grounds of appeal that on the day when the matter was posted for evidence of PW.1, the complainant was present at the time of call work and the matter was passed over for payment of costs and to file the evidence affidavit and when the matter was called again at 12-30 PM, by that time the complainant and his counsel were getting the evidence typed and therefore, they could not be present and the same was not controverted. 5. It is not a case where the complainant has been absent continuously for a number of occasions and that the matter went un-represented several times. The appellant sated that even on the date of the impugned order, he was present at the time of call work and the matter was passed over for filing the evidence affidavit and when it was again called, he could not be present because he was getting his evidence affidavit typed. 7. In the circumstances, it is considered that an opportunity can be given to the complainant to prosecute his complaint, so that the matter can be disposed of on merits. 8. Accordingly, it is held that the complaint be restored to file on the condition of complainant paying costs of Rs.500/- to respondent No.2 within two (2) weeks from the date of receipt of a copy of this order and in the event of the complainant not being diligent in pursuing the matter even after its restoration, it is open to the learned Magistrate to pass appropriate orders without showing any further indulgence. The appellant shall appear before the trial Court within three (3) weeks from the date of receipt of a copy of this order. 9. The Criminal Appeal is, accordingly, allowed. ___________________ G.V. SEETHAPATHY, J AUGUST 28, 2009. KTL