* THE HON’BLE SRI JUSTICE K.G. SHANKAR + CRIMINAL REVISION CASE.No.912 of 2004 % Dated 28.01.2011 # Venkateswara Tea Traders Rep. by its proprietor M.Venkateswara Rao … Petitioner v. $ Madhu Agencies, Rep. by its proprietor K.Madhusudhan and another … Respondents ! Counsel for the Petitioner : Sri B.Chinnapa Reddy. ^ Counsel for Respondents : Public Prosecutor < GIST: > HEAD NOTE: ? Cases referred 2002 (2) ALD (Crl.) 5 (AP) C/15 ORDER: This revision is directed against the orders of the learned I Additional Judicial Magistrate of First Class, Narasaraopet, dated 6.04.2004 in C.C. No.98 of 2002. The revision petitioner is the complainant. Respondent No.1 is the accused. 2. Respondent No.1 did not appear despite service of notice. 3. The complainant laid a case under Section 138 of the Negotiable Instruments Act,1881 against the accused before the trial Court. The complaint was laid on 24.11.2001. On 1.03.2002, the trial Court ordered notice to the accused. The case was adjourned from time to time before the trial Court for appearance of the accused. The case stood posted to 6.04.2004 for appearance of the accused. Indeed, the accused did not appear before the Court on that day. However, the complainant also did not appear before the trial Court on that day. In view of non- appearance of the complainant before the trial Court, the learned trial Judge acquitted the accused under Section 256 Cr.P.C. through the impugned order. Aggrieved by the same, the complainant preferred the present revision. 4. It is the case of Sri B. Chinnapa Reddy, learned counsel for the complainant that the presence of the complainant was not necessary on 6.04.2004 as the case stood posted to that date for appearance of the accused and not for trial. He placed reliance upon the decision of this court in Priyadarshini Cements Limited, Hyderabad Vs. State of A.P.[1]. In that case, mere absence of the complainant was held to be not a ground to dismiss the complaint automatically unless the presence of the complainant is necessary on the date of the hearing for the progress of the case. 5. In the present case, the presence of the complainant on 6.04.2004, patently was not necessary as the case stood posted for the appearance of the accused only. After appearance of the accused, papers should be supplied to the accused and the accused should be accorded an opportunity to engage a counsel. Thereafter on hearing both sides, accusation has to be made by the Court against the accused. Only thereafter, the case goes to trial, at which time the presence of the complainant would be necessary. 6. While so, the learned trial Judge invoked the provisions of Section 256 Cr.P.C. on the ground that the complainant was absent. I am afraid that the invocation of Section 256 Cr.P.C. on the ground that the complainant was absent is unjust and erroneous in this background, where the presence of the complainant was not material. The order of the trial Judge is consequently liable to be set aside. 7. Accordingly, this Criminal Revision Case is allowed. The impugned order is set aside. The learned trial Judge shall proceed from the stage of issuing process to the accused. __________________ K.G.SHANKAR, J 28th January 2011 KSP [1] 2002 (2) ALD (Crl.) 5 (AP)