THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1032 of 2011 Between: Yadala Srinivas .. Appellant AND The State represented by the Public Prosecutor, High Court of A.P., Hyderabad and another .. Respondents ORDER: The Criminal Appeal is directed against the dismissal of C.C.No.513 of 2006 on the file of III Additional Judicial First Class Magistrate, Rajahmundry, by an order dated 06-06-2008. The appellant filed the complaint against the 2nd respondent alleging committal of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and the case after it was taken on file against the 2nd respondent was coming on for hearing before the trial Court due to the pendency of a Non- Bailable Warrant against the accused. The trial Court in the impugned order has noted the absence of both the complainant and the accused and the pendency of a Non-Bailable Warrant against the accused. As there was no representation on behalf of the complainant, the trial Court presumed that the complainant has no interest to proceed with the matter and accordingly, dismissed the complaint and recalled the Non-Bailable Warrant. The appellant initially filed C.R.P.No.72 of 2010 before the Court of Session, Rajahmundry, against the said order, which was dismissed by an order dated 30-09-2010. The Court of Session referred to the decision reported in K.L. Venkateswara Rao v. State of A.P., and another (2003 (2) ALD (Crl.) 963 (AP), wherein it was incidentally held that an order of such dismissal can be set aside only in an appeal if the appeal was filed within time. Holding that the order under Section 256 of the Code of Criminal Procedure amounts to an acquittal, the revision was considered to be not maintainable. The appellant contended herein that the physical presence of the complainant was not necessary on the date of hearing as the case was posted for execution of Non-Bailable Warrant pending against the accused. The complainant having paid batta for issuance and execution of the warrant, when it was the duty of the police to execute the warrant, dismissal of the case on the ground of absence of complainant is not on the basis of a sufficient reason and hence, the impugned order is requested to be reversed. Heard Sri K. Venkatesh, learned counsel for the appellant and Sri Chandra Sekhar Ilapakurti, learned counsel for the 2nd respondent and Sri Rudresh Deshpande, learned counsel, representing the learned Public Prosecutor/1st respondent. The point for consideration is whether the impugned order dismissing the complaint for default has any justification? Section 256 of the Code of Criminal Procedure, 1973, which provides for an order of acquittal of the accused in the event of non-appearance of the complainant on the day appointed for the appearance of the accused or on any day subsequent thereto to which the hearing may be adjourned, is obviously intended to enable the Magistrate to proceed with the determination of such cases notwithstanding the lack of interest exhibited by the complainant by his absence. In a case where a Non-Bailable Warrant has been issued for securing the presence of the accused before the Magistrate and the Non-Bailable Warrant remained unexecuted and pending with the concerned police, the physical presence of the complainant before the Magistrate would not have mattered in any manner. While stating in the impugned order that there was no representation on behalf of the complainant, the impugned order also shows that the case came up for hearing before the learned Magistrate in the presence of Sri P.S. Gopal, advocate for the complainant and this contradiction in the impugned order makes it open to suspicion as to whether the learned counsel for the complainant before the trial Court was present or absent at the time when the matter was called. Mere absence on one date of hearing when the case was admittedly coming on since earlier for execution of Non-Bailable Warrant against the accused could not have been construed to be absence of any interest for the complainant to proceed with the matter on a too technical and rigid view. As rules of procedure are intended to be handmaids of justice and are not intended to handover savage consequences for technical lapses, the impugned order of dismissal of the complaint for default under such circumstances cannot be sustained and this is a fit case where the inherent powers of the Court should be invoked to set right the inequity caused by the impugned order. While reversing the impugned order, Sri I. Chandra Sekhar, learned counsel for the 2nd respondent, submitted that the 2nd respondent will submit herself to the judicial process and was not aware of issuance of Non-Bailable Warrant against her. The learned counsel desired that if the trial Court issues fresh summons to the 2nd respondent for appearance in the criminal case, she will immediately appear on the day fixed on the service of summons. The request is but reasonable. Therefore, the judgment in C.C.No.513 of 2006 on the file of III Additional Judicial First Class Magistrate, Rajahmundry, dated 06-06-2008 is set aside and the said C.C.No.513 of 2006 is restored to file of the said Court. The trial Court shall fix a fresh date of hearing for appearance of the parties on receipt of this order and issue fresh summons to the accused for appearance on such date of hearing, on payment of process by the complainant. If the complainant defaults in pursuing the case by paying process for issuance of summons to the 2nd respondent herein within three (3) days from the date of the trial Court calling the matter on the bench on receipt of this order and fixing a date of hearing for appearance of the accused, the trial Court is at liberty to proceed further in the case in accordance with law. The Criminal Appeal is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 08-12-2011 Ksn