THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL (SR) No.7609 of 2011 JUDGMENT: This criminal appeal is filed against the docket order of dismissal of complaint by the Principal Junior Civil Judge-cum-Additional Judicial First Class Magistrate, Ramachandrapuram, in C.C.No.186 of 2010, dated 30-11- 2010. The impugned order reads as under: “Complainant is absent. No representation. Accused is present. This matter posted to today for cross- examination of complainant. In the last occasion also complainant called absent. As such this matter posted to this day on condition that the complainant should be appear before this Court, today on his failure this complaint will be dismissed. In spite of that conditional order, the complainant neither present nor represented by his counsel. Hence, this complaint is dismissed for default and the accused is acquitted under Section 256 Cr.P.C.” Learned Counsel for the appellant-complainant contended that the absence of the complainant was neither willful nor intentional and he was not present before the Court due to his ill-health. He also submitted that the Court below erred in dismissing the complaint filed by the appellant-complainant for the offence punishable under Section 138 of the Negotiable Instruments Act without going into the merits of the case. The learned Counsel for the appellant-complainant has relied on a judgment of the Supreme Court reported in ASSOCIATED CEMENT CO., LTD., V. KESHVANAND [1], wherein it was held that if the presence of the complainant was essential on that day, the Magistrate was right in dismissing the complaint when he was absent, but he is not justified in dismissing the complaint when his presence was not essential. Having regard to the facts and circumstances of the case, this Court is of the view that the case has to be decided on merits instead of dismissing the same on some technicalities. Hence, the impugned order could not have been passed which is liable to be set aside. The appeal is allowed at the stage of admission and the impugned order is set aside. The trial Court shall proceed with the matter in accordance with law. _______________________________ (GOPALA KRISHNA TAMADA, J) rkk Dated: 6-4-2011 [1] 1998 (1) ALD (CRL) 374 (SC)