IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE 20th DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.550 OF 2005 Between: Settipalle Nageswara Reddy …Appellant/Complainant A n d Ayyappa Constructions, rep. By its Managing Partner T.Ayyal Reddy and another …Respondents/Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.550 OF 2005 JUDGMENT: This appeal is directed against the order dated 08-12-2004 in C.C.No.234 of 2003, on the file of the I- Additional Judicial Magistrate of the First Class, Proddatur, wherein the said complaint filed by the complainant herein, was dismissed for non-payment of batta. 2. Heard the learned counsel for the appellant. None appeared for the respondent. Perused the records. 3. As seen from the impugned order, on 08- 12-2004, the date on which the matter was posted, the complainant was absent and no representation was made on his behalf and batta was also not filed and, therefore, the complaint was dismissed. 4. Learned counsel for the appellant would submit that the absence of the complainant was neither willful nor wanton and that the batta was paid initially but notices could not be served on the accused, who was residing in Karnataka State and fresh batta could not be paid by the counsel appearing for the complainant due to communication gap. He would further request that, having regarding to the fact that huge amount of Rs.3,50,000/- is involved, an opportunity may be given to the complainant to prosecute the complaint. He relies on a decision of the Apex Court in ASSOCIATED CEMENT COMPANY LTD., V. KESHVANAND[1], wherein the Apex Court held that a complaint cannot be dismissed for non- appearance of the complainant unless it is found that the presence of the complainant on the date of particular adjournment is quite necessary. In the present case, the presence of the complainant was not, in fact, required on 08-12-2004, as the matter was coming before the Court for payment of batta for service of notice. Unfortunately, no representation was made on behalf of the complainant, which resulted in dismissal of the complaint. 5. As the complainant could not be held to be at fault and he may not be penalized for any lapse on the part of his counsel, it is considered just and proper that an opportunity be given to the complainant to prosecute the complaint. It is, however, open to the learned Magistrate to pass appropriate orders in the event of the complainant persisting in not paying the batta for service of notice. 6. In the circumstances, the impugned order is set aside and the complaint is directed to be restored to file and proceeded with in accordance with law. 7. In the result, the criminal appeal is allowed accordingly. ____________________ G.V.SEETHAPATHY, J 20th August 2009. Lrkm [1] 1998(1) Ald (crl.) 374 (SC)