THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRLA. No.94 of 2010 Date: 24.2.2010 Between: Someshwar Rao, Lalapet, Secunderabad. Appellant. And Bhadramma, Malkajgiri Mandal, Rangareddy District and State. Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRLA No.94 of 2010 JUDGMENT: This Criminal Appeal is directed against the order dated 1.9.2008 passed in C.C.No.229 of 2005 on the file of X Metropolitan Magistrate, Cyberabad, Malkajgiri, whereby and whereunder the learned Magistrate dismissed the complaint for non-payment of process. Notice before admission came to be ordered on 27.11.2009. Despite service of notice, none appears on behalf of the 1st respondent-accused. Heard learned counsel appearing for the appellant/complainant and perused the order impugned in the revision. Learned counsel appearing for the appellant/complainant submits that the appellant could not present before the trial Court on 1.9.2008 due to communication gap between him and his counsel, and, therefore, the appellant/complainant could not pay the process for service of summons on the 1st respondent/accused. A further submission has been made that the absence of the appellant/complainant on 1.9.2008 is not willful. The appellant/complainant presented a complaint before II Metropolitan Magistrate, Cyberabad alleging inter alia that one T. Saibaba borrowed hand loan of Rs.1,50,000/- from him and the 1st respondent/accused stood as a guarantor for repayment of the said hand loan and executed a promissory note. He also issued legal notice to Saibaba and the 1st respondent/accused on 7.9.2004 demanding to pay the amount due to promissory note. After receipt of the legal notice, the guarantor i.e., 1st respondent/accused issued a cheque for Rs.1,50,000/- in favour of the appellant/complainant. On presentation, the said cheque came to be returned with an endorsement “insufficient funds’. Thereupon, the appellant/complainant issued a notice to the 1st respondent/accused on 28.1.2005 demanding her to make good the amount covered under the cheque. Though the 1st respondent/accused received the notice, she did not choose to liquidate her liability. Hence, the 1st respondent accused is liable for punishment under Section 138 of the Negotiable Instruments Act. The learned Magistrate took the complaint on file as C.C.No.229 of 2005. Subsequently, the complaint came to be dismissed for non-payment of process and non- appearance of the appellant/complainant on 1.9.2008. Hence, this criminal appeal. The appellant stated in the grounds of appeal that the appellant could not be present before the Court on 1.9.2008 and he could not pay the process for service of summons on the 1st respondent/accused due to communication gap between him and his counsel. In the given facts and circumstances of the case, I find that the appellant/complainant made out valid ground for his absence on 1.9.2008 and for non-payment of process. Accordingly, this Criminal Appeal is allowed at the admission stage setting aside the order dated 1.9.2008 and consequently, C.C.No.238 stands restored to its file. ______________________________________ JUSTICE B. SESHASAYANA REDDY Date:24.2.2010 mrb