THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.432 of 2011 JUDGMENT: This Criminal Appeal is filed against the order of dismissal of complaint by the learned IV Metropolitan Magistrate, Ibrahimpatnam, in C.C.S.R.No.3180 of 2009, dated 24.11.2009. 2. The impugned order reads as under: “The Complainant is absent, his advocate is absent. No representation on behalf of the complainant and it is passed over during the call work and awaited till 3.45 p.m., but there is no representation on behalf of the complainant. This complaint has been filed on 15-09-2009 and since then posted for recording sworn statement of the complainant but he is called absent, and failed to come forward to give his sworn statement. Therefore this complaint is hereby dismissed under Section 256 (1) Cr.P.C. for default on the part of the complainant”. 3. Learned Counsel for the appellant-complainant contended that the absence of the complainant was neither wilful nor intentional. He also submitted that the case was coming up for appearance of accused and the presence of complainant was not necessary and, therefore, the complaint should not have been dismissed. 4. Despite service of notice, 1st respondent-accused has neither appeared nor was he represented by an advocate. I have heard the learned Counsel for the appellant-complainant. 5. Learned Counsel for the appellant-complainant has relied on a decision 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. It is submitted that the case was coming up for appearance of the accused. Therefore, the presence of complainant was not essential. In view of the specific averments made in the complaint that the 1st respondent- accused, who borrowed the amount, issued a cheque and the said cheque was dishonoured by the bank, this Court is of the view that the case has to be decided on merits instead of dismissing the same on some technicalities. In these circumstances, the impugned order could not have been passed which is liable to be set aside. 6. Accordingly, Criminal Appeal is allowed and the impugned order is set aside. The trial Court shall proceed with the matter in accordance with law. ________________________________ GOPALA KRISHNA TAMADA, J 20th October, 2010 Tsy [1] 1998 (1) ALD (CRL) 374 (SC)