THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.749 of 2010 DATED: 31-05-2010 JUDGMENT: This appeal is directed by the appellant-complainant against the order, dated 06.11.2009, passed by the learned Judicial Magistrate of First Class, Narsapur, West Godavari District in C.C.No.78 of 2007, dismissing the complaint for default on the ground that in spite of condition, the complainant was called absent and there was no representation on his behalf. 2. Heard both sides. 3. The brief facts are that as the cheque issued by the 1st respondent-accused for an amount of Rs.62,000/- was bounced on presentation, the appellant after following the procedure provided for under Sections 138 and 141 of the Negotiable Instruments Act filed the said complaint and the learned Magistrate took cognizance of the offence and the same was numbered as C.C.No.78 of 2007. Thereafter, as stated supra, the said complaint was dismissed for default and the accused was acquitted on the ground that the complainant was absent on 06-11-2009. The said order is as follows: “Complainant called absent. Petition filed and allowed. Accused called present. This matter is posted for marking of documents and cross of P.W.1. Complainant did not turn up before the Court for marking of documents. Hence, his evidence is eschewed and complaint is dismissed for default and accused is acquitted”. 4. No doubt, when the complainant is absent there is no option but to invoke the provisions under Section 256 Cr.P.C. but at the same time, it should also be looked into as to whether the complaint is to be dismissed solely on the ground that the complainant was absent. Here is a case where it is stated that the cheque amount is Rs.62,000/- and hence it cannot be said that the complainant is not diligent enough in getting the matter prosecuted. 5. When the complainant and his counsel were called absent at the time of hearing the matter, the court below, instead of dismissing the complaint, should have adjourned the matter giving an opportunity of hearing the complainant. In the light of the same and as the submissions made by the learned counsel for the appellant-complainant appear to be reasonable and having regard to the fact that the complaint was filed against the 1st respondent-accused for the offences punishable under Section 138 of the Negotiable Instruments Act, this Court is of the view that the impugned judgment is liable to be set aside. 6. In the result, the Criminal Appeal is allowed and the order, dated 06-11-2009, passed by the learned Judicial Magistrate of First Class, Narasapur, in C.C.No.78 of 2007, is set aside, and the complaint is restored to file. _____________________________ GOPALA KRISHNA TAMADA 31st May, 2010 Tsy