THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.403 of 2011 JUDGMENT: This criminal appeal is filed against the docket order of dismissal of complaint by the V Additional Judicial Magistrate of First Class, Kakinada, in C.C.No.2011 of 2008, dated 27.7.2010. The impugned order reads as under: “On perusal of the previous docket order in this case, the complainant filed NBW batta when NBW issued against the accused and also filed a absent petition on behalf of complainant by his counsel. The above circumstance shows that the complainant counsel is having knowledge about the proceedings in this case. Hence, notice to counsel for the complainant is dispensed with. Several opportunities given to the complainant to file his chief affidavit and to adduce his side evidence. The said circumstance shows that complainant is not having any interest to proceed with the case. This is a matter relating to the year 2007 and the accused is roaming around the Court without any progress in this case. Hence, for ends of justice, this complaint is dismissed under Section 256 Criminal Procedure Code for non- appearance of complainant and for not adducing his side evidence. The accused is acquitted from this case forthwith. The bail bonds of accused if any shall stands cancelled.” Learned Counsel for the appellant-complainant contended that initially the complaint was filed before the IV Additional Judicial First Class Magistrate, Kakinada and subsequently, the same was transferred to V Additional Judicial First Class Magistrate, Kakinada, due to administrative reasons and no notice was issued to the complainant and 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. Learned counsel for the petitioner-complainant submits that as 1st respondent-accused is not served with the notice and NBWs are pending against him, formal notice can be dispensed with. Considering the said submission, notice to 1st respondent is dispensed with in this revision. 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) rkk Dated: 6-4-2011 [1] 1998 (1) ALD (CRL) 374 (SC)