HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.569 of 2010 DATE:06.04.2010 Between: Dukkipati Rama Babu … Appellant And State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of A.P., Hyderabad and another … Respondents HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.569 of 2010 JUDGMENT: This appeal is directed against the docket order dated 03.08.2009 passed by the learned Judicial Magistrate of First Class, Mummidivaram, in C.C.(S.R.)No.778 of 2009. 2. The facts of the case, in brief, are that the appellant- complainant filed the complaint against the 2nd respondent- accused for the offence punishable under Sections 138 of the Negotiable Instruments Act. Subsequently, the court below dismissed the complaint on the ground that the appellant was absent and there was no representation on his behalf, by docket order dated 03.08.2009. 3. Though the 2nd respondent was served with notice, he has not chosen to put in his appearance. 4. Learned counsel for the appellant has submitted that when the matter came up for hearing on 03.08.2009, he could not attend before the court below as he was engaged in other court at that time and by the time he approached the court below, the court below dismissed the complaint without passing over the matter or adjourning the matter. He further submitted that the appellant also could not attend the court below on the date of hearing as he was suffering from fever and the absence of the appellant is not willful. Therefore, he prays to allow the appeal. 5. When the appellant and his counsel were absent on the date of hearing, the court below should have adjourned the matter by giving an opportunity to the appellant. In the light of the same and as the submission of the learned counsel for the appellant appears to be reasonable and having regard to the fact that the complaint was filed against the 2nd respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, this Court is of the view that the impugned order is liable to be set aside. 6. In the result, the criminal appeal is allowed and the docket order dated 03.08.2009 passed by the learned Judicial Magistrate of First Class, Mummidivaram, in C.C. (S.R.)No.778 of 2009, is set aside, and the complaint is restored to file. _______________________ GOPALA KRISHNA TAMADA 6th April, 2010 CBS HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.569 of 2010 (Allowed) Date:06-04-2010 CBS