THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No. 415 of 2011 JUDGMENT: This criminal appeal is filed against the docket order of dismissal of complaint by the XIV-Metropolitan Magistrate, Cyberabad at L.B.Nagar, Ranga Reddy District, in C.C.No.1578 of 2009 dated 09.09.2009. The impugned order reads as under: “Accused is present. Complainant is absent.. No representation in spite of posting as finally, the complainant did not turn up. It shows he has no interest over the case. In the result, complaint is dismissed.” Learned Counsel for the appellant-complainant contended that the absence of the complainant was neither willful nor intentional. He also submitted that the Court below erred in dismissing the complaint filed by the appellant-complainant for the offence punishable under Section 138 of the Negotiable Instruments Act without going into the merits of the case. The learned Counsel for the appellant-complainant has relied on a judgment of the Supreme Court reported in ASSOCIATED CEMENT CO., LTD., V. KESHVANAND [1], wherein it was held that if the presence of the complainant was essential on that day, the Magistrate was right in dismissing the complaint when he was absent, but he is not justified in dismissing the complaint when his presence was not essential. Despite service of notice, the 2nd respondent-accused has neither appeared nor was he represented by an advocate. Having regard to the facts and circumstances of the case, this Court is of the view that the case has to be decided on merits instead of dismissing the same on some technicalities. Hence, the impugned order could not have been passed which is liable to be set aside. The appeal is allowed at the stage of admission and the impugned order is set aside. The trial Court shall proceed with the matter in accordance with law. _______________________________ (GOPALA KRISHNA TAMADA, J) 21-03-2011 Gsn. [1] 1998 (1) ALD (CRL) 374 (SC)