THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.105 of 2010 DATED: 15-04-2010 JUDGMENT: This appeal is directed by the appellant-complainant against the order, dated 21.08.2009, passed by the learned VII Metropolitan Magistrate, Cyberabad in C.C.No.280 of 2006, dismissing the complaint for default on the ground that in spite of condition, the complainant was called absent and there was no representation on his behalf. 2. Heard both sides. 3. Appellant herein filed the C.C.280 of 2006 against the 1st respondent herein for the offence punishable under Section 138 of the Negotiable Instruments Act. In spite of the conditional order to commence trial, the complainant failed to appear to prosecute the case and hence, the Court below dismissed the complaint for default on 21-08-2006. 4. Now, it is submitted by the learned counsel for the appellant-complainant that due to illness and financial crises the complainant could not appear before the Court below on the date of hearing and his absence was not intentional. 5. When the complainant and his counsel were called absent at the time of hearing the matter, the court below, instead of dismissing the complaint, should have adjourned the matter giving an opportunity of hearing the complainant. In the light of the same and as the submissions made by the learned counsel for the appellant-complainant appear to be reasonable and having regard to the fact that the complaint was filed against the 1st respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, this Court is of the view that the impugned judgment is liable to be set aside. 6. In the result, the Criminal Appeal is allowed and the order, dated 21-08-2009, passed by the learned VII Metropolitan Magistrate, Cyberabad, in C.C.No.280 of 2006, is set aside, and the complaint is restored to file. _____________________________ GOPALA KRISHNA TAMADA 15th April, 2010 Tsy