IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTEENTH DAY OF TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1668 OF 2009 Between: C.Chandra Sekhar ..... Appellant/Complainant AND 1. Vattikollu Krishna Satyanarayana ..... Respondent/Accused 2. The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent/Respondent The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1668 OF 2009 JUDGMENT: The Criminal Appeal, under Section 378 (4) of the Code of the Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the order, dated 22.10.2008, in C.C.No.421 of 2006, on the file of the learned Special Judicial Magistrate of I Class, Prohibition and Excise Court, Srikakulam, whereunder and whereby the complaint was dismissed for default and the first respondent/accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”). 2. Notice sent to the accused/first respondent herein is returned as not claimed. 3. Heard the learned counsel appearing for the appellant. 4. On 22.10.2008, the complainant was absent and no representation was made and the complainant failed to appear inspite of the conditional order. Therefore, the complaint was dismissed for default and the accused was acquitted for the offence punishable under Section 138 of the Act. 5. Learned counsel appearing for the appellant contended that due to viral fever, the appellant did not attend the Court on 22.10.2008 and the absence of the complainant on that day was not willful or wanton. 6. No doubt, the trial Court was right in dismissing the complaint as there was no representation, but it should have given one more opportunity to the complainant to prosecute the case as proper explanation was given by the complainant for his absence on 22.10.2008. As he was suffering from chicken pox, he should have not been in a position to give proper instruction to his counsel because of his ill-health. The absence of the complainant was not shown to be willful or wanton. Therefore, one more opportunity can be given to the appellant/complainant to prosecute the case. Therefore, the impugned order, dated 22.10.2008, is set aside and the C.C. is restored to file. 7. In the result, the Criminal Appeal is allowed and the trial Court is directed to dispose of the case in accordance with law. _______________ (K.C. BHANU, J) Date: 18th January, 2010 KL