HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.413 of 2010 DATE:29.03.2010 Between: M/s. Sri Srinivasa Auto Service, rep. by its Managing Partner, Khammam … Appellant And The State of A.P., represented by its Public Prosecutor, High Court of A.P., Hyderabad and another … Respondents HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.413 of 2010 JUDGMENT: This appeal is directed against the docket order, dated 09.10.2009, in C.C.No.199 of 2004, passed by the learned II Additional Judicial Magistrate of First Class, Khammam, dismissing the complaint filed by the appellant-complainant against the respondent-accused, for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, on the ground that the appellant was absent and there was no representation on its behalf. 2. Though the respondent is served with notice, she has not chosen to put in her appearance before this Court. 3. It is the contention of the learned counsel for the appellant that the appellant is prompt in pursuing the complaint and on the date of hearing, because of unavoidable circumstances, he could not attend the court. But however, the court below, without giving any opportunity to the appellant, dismissed the complaint. Therefore, he prays to allow the appeal. 4. The order impugned in this appeal reads as follows: “Accused present. Complainant absent, no representation, inspite of conditional order. It seems that complainant is not evincing any interest in prosecuting the case. Hence, further proceedings closed. Accused is acquitted under Section 256 of Cr.P.C.” 5. When the complainant is absent on the date of hearing, the court below has no option, except to dismiss the complaint, as provided for under Section 256 Cr.P.C. But, at the same time, the court below should look into the aspect, as to whether the absence is willful or deliberate. As seen from the impugned order, it is clear that the court below has not looked into the said aspect. When it is the case of the appellant that on the date of adjournment, due to unavoidable circumstances, he could not attend the court, the court below should have given one more opportunity to him on costs. In the light of the same and as the submissions made by the learned counsel for the appellant appears to be reasonable and having regard to the fact that the complaint was filed against the respondent for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, this Court is of the view that the impugned order is liable to be set aside. 6. In the result, the appeal is allowed and the docket order dated 09.10.2009, in C.C.No.199 of 2004, passed by the learned II Additional Judicial Magistrate of First Class, Khammam is set aside, and the complaint is restored to file. The court below is hereby directed to proceed with the case, in accordance with law. _______________________ GOPALA KRISHNA TAMADA 29th March, 2010 CBS HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.413 of 2010 (Allowed) Date:29-03-2010 CBS