HON’BLE SRI JUSTICE K.C. BHANU Crl.A.No.1593 of 2009 DATED: 21.12.2009 Between:- G.V. Raghava Reddy .. Appellant/ Complainant And 1. K.V. Subba Reddy 2. The State of A.P. .. Respondents/ Accused JUDGMENT:- This Criminal Appeal is preferred by the complainant against the Order dated 23-06-2009 passed in C.C.No.193 of 2009 by XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad, whereunder and whereby the complaint filed by the appellant-complainant was dismissed for default on the ground that the complainant was absent and process was not paid and the 1st respondent-accused was acquitted under Section 256 Cr.P.C.. Even though notice was served on the 1st respondent-accused, he has not chosen to put in his appearance either in person or through his counsel. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the 2nd respondent and perused the material placed on record. The appellant filed the complaint for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) complaining that a Cheque bearing No.880612 dated 08.11.2003 for Rs.2,50,000/- issued by the accused towards part payment of loan was returned by the Bank officials with an endorsement “insufficient funds”, as such, after following the procedure prescribed under Section 138 of the Act, he filed the complaint and the same was numbered as C.C.No.193 of 2009. According to the learned counsel for the appellant-complainant, the complainant is very much diligent and he is prosecuting the case with utmost care and caution, and in fact, there are no willful laches on his part in attending the Court, but the absence of the complainant on that particular day was due to his ill-health; therefore, considering these facts and circumstances, an opportunity may be given to the complainant to prosecute his case. No doubt, if the complainant is absent and there is no representation, it is always open for the trial Court to dismiss the complaint under Section 256 Cr.P.C., but at the same time, the Court has a duty to look into the aspect as to whether the absence of the complainant on the particular date is willful or due to any other reason. It appears that the non-bailable warrant issued against the accused is pending. Therefore, the presence of the complainant may not be essential. Considering the facts and circumstances of the case and the submissions made by the learned Counsel for the appellant, it is a fit case where the appellant should be given one more opportunity to prosecute his case. In the result, Crl.A.No.1593 of 2009 is allowed at the stage of admission setting aside the order dated 23.06.2009 passed in C.C.No.193 of 2009 on the file of XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad, and consequently, C.C. No.193 of 2009 is restored to its file. ______________ K.C. BHANU, J. 21st December, 2009 bcj