IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRL.A. No.1265 of 2010 Date:01.10.2010 Between: M. Yadaiah .....Petitioner AND The State of A.P., rep. by its PP., High Court of A.P. and another ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRL.A. No.1265 of 2010 ORDER: 1. This appeal is directed against the docket order dated 16.08.2010 passed by the III Additional Metropolitan Magistrate, Hyderabad in C.C.No.2282 of 2009 whereby the complaint filed by the petitioner herein was dismissed on the ground of his absence. 2. The petitioner filed a private complaint before the court below alleging that the cheque which was issued by the 2nd respondent herein was bounced and hence he followed the procedure as contemplated under Section 138 of the Negotiable Instruments Act and filed the said private complaint and the same was taken on file as C.C.No.2282 of 2009 by the court below. As stated supra, the complaint is dismissed on the ground of his absence. 3. Heard the learned counsel for the appellant. 4. The impugned docket order in C.C.No.2282 of 2009 reads as follows: “Complainant is called absent and no representation. No report is filed to show whether summons are served or not. Complainant is not showing interest. He is not appearing. Hence, matter is kept aside in the interest of justice. Even after call work, the complainant is called absent and no representation. Complainant is not showing interest. Hence, complaint is dismissed.” 5. From the above docket order, it is clear that even the summons were not served on the 2nd respondent-accused. When the complainant is absent when the matter is called and no representation, no doubt the court can dismiss the said complaint straight away, but however, the court should also see as to whether the complainant’s presence is required. But, here it is a case where the summons which were issued by the court below were not served on the 2nd respondent- accused and in such a case, it cannot be said that the complainant shall invariably be present. In fact, in the proviso to Section 256 Cr.P.C, it is clearly stated that if the Magistrate is of the opinion that the attendance of the complainant is necessary or not, he may acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Reading of the docket order shows that summons were not served on the 2nd respondent-accused. In those circumstances, it cannot be said that the complainant shall be present on all the dates of adjournment. Having regard to the facts and circumstances of the case, this court is of the view that the appeal can be allowed and C.C can also be ordered to be restored to its file. 6. Accordingly, the criminal appeal is allowed. However, the court below is directed to take C.C.No.2282 of 2009 on its file. _______________________________ GOPALA KRISHNA TAMADA,J October 01, 2010 GK. THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRL.A. No.1265 of 2010 Date: 01.10.2010 Gk.