HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.127 of 2010 DATE:06.04.2010 Between: Patan Firoz Khan … 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.127 of 2010 JUDGMENT: This appeal is directed against the order dated 25.08.2009 passed by the learned I Addl. Judicial Magistrate of First Class, Tenali, in C.C.No.236 of 2008. 2. The facts of the case, in brief, are that the appellant- complainant filed the complaint against the 2nd respondent- accused for the offences punishable under Sections 138 and 142 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 an order dated 25.08.2009. 3. Notice sent to the 2nd respondent was returned unserved with an endorsement “REFUSED TO RECEIVE”. Hence, it is treated that the 2nd respondent is served with the notice. 4. Learned counsel for the appellant has submitted that on 25.08.2009 when the matter came up for hearing, 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 was regular in attending before the court below on all past adjournments and prosecuting his case and the absence of the appellant is not willful. Therefore, he prays to allow the appeal. 5. When the complainant is absent on the date of hearing, the court below has no option, except to dismiss the complaint, as provided for under Section 256 Cr.P.C. But, at the same time, the court below should look into the aspect, as to whether the absence is willful or deliberate. As seen from the impugned order, it is clear that the court below has not looked into the said aspect. 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 offences punishable under Sections 138 and 142 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 order dated 25.08.2009 passed by the learned I Addl. Judicial Magistrate of First class, Tenali, in C.C.No.236 of 2008, 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.127 of 2010 (Allowed) Date:06-04-2010 CBS