THE HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA CRIMINAL REVISION CASE No.1095 of 2010 DATED: 08-10-2010 ORDER: This Criminal Revision Case is directed against the docket order, dated 25-05-2010, in C.C.No.109 of 2010 on the file of the learned Additional Munsif Magistrate, Chirala, whereby the learned Magistrate dismissed the complaint on the ground that the complainant was absent and no representation was made on his behalf. 2. Brief facts of the case are that the 2nd respondent borrowed an amount of Rs.26,000/-from the petitioner herein towards his family expenses agreeing to repay the same with interest @ 24% p.a., and accordingly executed a promissory note, dated 20-10-2005. Subsequently, when the petitioner herein demanded for repayment, the 2nd respondent herein issued a cheque bearing No.901829, dated 15-09-2008, for an amount of Rs.44,200/-. On presentation of the said cheque, the same was dishonoured with an endorsement ‘funds insufficient’. Therefore, after following the procedure under Section 138 of the Negotiable Instruments Act (for brevity, ‘the Act’), petitioner herein filed a complaint before the learned Additional Munsif Magistrate, Chirala and the learned Magistrate took cognizance of the same and numbered it as C.C.No.109 of 2010. As stated supra, as the petitioner herein-complainant was absent on 24-05-2010, the learned Magistrate dismissed the complaint. Hence, the present revision. 3. This Court, while ordering notice before admission, permitted the learned counsel for the petitioner to take out personal notice to the 2nd respondent and file proof of service. As the said notice was unserved, this Court on 01-10-2010 permitted the learned counsel for the petitioner to take out personal notice by way of paper publication in ‘Andhra Jyothi’ Telugu daily newspaper of Prakasam District edition and accordingly learned counsel for the petitioner got the notice published in the said newspaper and filed proof. In the light of the same, it is deemed that the notice is served to the 2nd respondent herein. 4. Heard both sides. Perused the record. 5. Apparently, non-bailable warrant is pending against the 2nd respondent herein and in my considered view, the presence of the petitioner is not required. When the complainant and his counsel were called absent at the time of hearing the matter, the Court below, instead of dismissing the complaint, should have adjourned the matter giving an opportunity of hearing the complainant. In the light of the same and having regard to the fact that the complaint was filed against the 2nd respondent- accused for the offence punishable under Section 138 of the Act, this Court is of the view that the impugned order is liable to be set aside. 6. In the result, the Criminal Revision Case is allowed and the order impugned, dated 25-05-2010, passed by the learned Additional Munsif Magistrate, Chirala, in C.C.No.109 of 2010, is set aside, and the complaint is restored to file. _______________________________ GOPALA KRISHNA TAMADA,J 08th October, 2010 Tsy