THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRLA. No.101 of 2010 Between: State Bank of India, Rep by its Deputy manger, Khammam. Appellant. And Boda Pentu, Head Master, Mustafangar, Khamam and State of A.P., Rep by Public Prosecutor. Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRLA No.101 of 2010 JUDGMENT: This Criminal Appeal is directed against the order dated 27.5.2008 passed in C.C.No.408 of 2007 on the file of the Special Judicial Magistrate of First Class (Prohibition and Excise Cases) Court at Khammam, whereby and whereunder the learned Magistrate dismissed the complaint of the appellant for the offences under Section 138 read with 142 of the Negotiable Instruments Act and Section 420 IPC and acquitted the accused under Section 256 Cr.P.C., for the said offence. Notice before admission came to be ordered on 21.1.2010. Despite notice being served, the 1st respondent-accused did not choose to enter appearance. Heard learned counsel appearing for the appellant/complainant. Learned counsel appearing for the appellant/complainant submits that the appellant could not be present before the trial Court on 27.5.2008 because of his hill health such as fever and abdominal pain. A further submission has been made that the appellant/complainant deserves to be given one opportunity to adduce evidence on his behalf before the trial Court so as the matter to be disposed of on merits. The order passed by the trial Court on 27.5.2008 reads as follows: “Complainant is called absent. No representation. Accused is present. Since the matter is coming for trial as last chance, there is no representation on behalf of the complainant hence this Complaint is dismissed and the accused is acquitted under Section 256 Cr.P.C.” The appellant/complainant filed a complaint before I Additional Judicial Magistrate of First Class, Khammam alleging inter alia that the accused availed loan of Rs.1,00,000/- for domestic purpose. The amount is to be repaid in 60 monthly installments at the rate of Rs.2,600/-, the accused executed necessary documents in favour of the appellant/complainant-Bank. Thereafter, the accused issued a Cheque bearing No.127841 for Rs.1,14,144/- towards discharge of his liability. On presentation, the cheque came to be returned with an endorsement “insufficient funds”. The appellant- complainant issued legal notice on 21.11.2006 calling upon the accused to make good the payment covered under cheque. The accused failed to pay the amount covered under the cheque. The appellant filed a complaint before the Judicial Magistrate of First Class (Prohibition and Excise Cases) Court at Khammam under Section 200 Cr.P.C. The learned Judge took a complaint on file as C.C.No.408 of 2007 and issued process. The accused entered appearance. The case stood posted to 27.5.2008 for recording the evidence of the appellant/complainant. Since the appellant/complainant failed to appear before the Court, the complaint came to be dismissed resulting acquittal of the accused under Section 256 Cr.P.C. The order of acquittal is assailed in this revision. In paragraph No.4 of the grounds of the Appeal, the petitioner/appellant has specifically stated that he could not present before the trial Court on 217.5.2008 because of his serious ailments like body pains and abdominal pain. In that view of the matter, I deem it appropriate to set aside the acquittal of the accused and remanded the matter back to the trial Court for fresh disposal. Accordingly, this appeal is allowed setting aside the order of acquittal dated 27.5.2008 and remanding the matter back to the trial Court for fresh disposal. The appellant/complainant shall adduce his evidence on his behalf in two sittings without taking unnecessary adjournments. ______________________________________ JUSTICE B. SESHASAYANA REDDY Date:18.2.2010 Issue CC within one week. B/O mrb