THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.1398 of 2010 JUDGMENT: The appellant herein filed a private complaint stating that the respondent borrowed an amount of Rs.60,000/- on 03.12.2007 and executed a promissory note. Thereafter, on the request of the respondent, the complainant again gave a sum of Rs.40,000/- to the respondent on 15.02.2008 and in that regard, he executed an agreement. On several demands for repayment of the said amount, the respondent-accused issued a cheque bearing No.137446, dated 19.07.2008, for an amount of Rs.1,00,000/- drawn on HDFC Bank, Karimnagar Branch, and when the said cheque was presented, it was bounced with an endorsement “insufficient funds”. Hence, the appellant filed the said complaint under Section 138 of the Negotiable Instruments Act. On 15.04.2010, as the complainant was absent, the learned Judicial Magistrate of First Class, (Special Mobile), Karimnagar, dismissed C.C.No.233 of 2010 and the same is questioned in this appeal. Heard both sides. From the impugned docket order, dated 15.04.2010, it is not known as to what was the stage of the proceedings in the said C.C. However, learned counsel for the appellant submitted that the said case was coming up for payment of process for issuance of summons to the respondent-accused. No doubt, when once the complainant is absent, it is for the Magistrate to dismiss the complaint as provided for under Section 256 (1) Cr.P.C., but, however, it should be seen as to whether the dismissal is really required. In the instant case, the case was coming up for payment of process for issuance of summons to the accused, which means that the accused has not put in his appearance before the Court below. In those circumstances, in my considered view, there is no justification for the Court below to dismiss the complaint on the ground that the complainant is absent. If the said CC is at a stage where the trial is in progress and the complainant is absent, of course, the Magistrate can pass an order dismissing the complaint. But, in the instant case, even the process for issuance of summons was not yet paid by the complainant and as the cheque amount is Rs.1,00,000/- and the petitioner had offered a valid explanation for his absence on 15.04.2010, this Court is of the view that the complainant-appellant be given an opportunity to prove the guilt of the accused. Accordingly, the Criminal Appeal is allowed and the impugned order is set aside and C.C.No.233 of 2010 on the file of the Judicial Magistrate of First Class, (Special Mobile), Karimnagar, is restored to its original file. ___________________________________ JUSTICE GOPALA KRISHNA TAMADA 10th November 2010 DR