APHC010386502019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] WEDNESDAY, THE 22nd DAY OF JULY 2026 PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 1221/2019 Between: 1. A SUDHAKAR REDDY, S/O JAYARAMI REDDY, HINDU, AGE 44 YRS, R/O 18-88/9V, MAHABOOB NAGAR COLONY, GUNTAKAL, ANANTAPUR DISTRICT. ...PETITIONER AND 1. SHAIK CHOTA BABU ALIAS BABU SHAIK, S/O JANIMIYA, AGED 43 YRS, OCC BUSINESS, R/O 6-2-46/G, JIMMIBAND STREET, KHAMMAM, KHAMMAM DISTRICT. 2. THE STATE OF ANDHRA PRADESH, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI. ...RESPONDENT(S): Counsel for the Petitioner: 1. N CHANDRA SEKHAR REDDY Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR (AP) 2. MADHU SUDHAN P The Court made the following: 2 Dr.YLR, J Crl.R.C.No.1221 of 2019 Dated 22.07.2026 ORDER: Heard the learned Counsel for the Petitioner, learned Counsel for the Respondent No.1 and the learned Assistant Public Prosecutor. 2. This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity, ‘the Cr.P.C’) seeking to set aside the order dated 25.09.2019 passed by the learned Trial Court dismissing the complaint for default on the ground of the absence of the complainant and lack of representation. 3. On a perusal of the docket proceedings, it is evident that, from 25.05.2018 onwards, the case had been repeatedly adjourned for execution of the Non-Bailable Warrant (NBW) issued against the accused. Even on 25.09.2019, the case was posted for execution of the NBW. In such circumstances, there was no justification for the learned Trial Court to dismiss the complaint for non-prosecution merely on account of the absence of the complainant or his counsel. When the accused had not yet been secured and the matter was pending only for execution of the NBW, the learned Trial Court ought to have awaited the execution of the warrant instead of dismissing the complaint in haste. 4. In this regard it is apposite to refer the judgment of the Hon’ble Apex Court in Associated Cement Co. Ltd. v. Keshvanand1, the Hon'ble Supreme Court held that a complaint should not be dismissed merely because the 1 (1998) 1 SCC 687 3 Dr.YLR, J Crl.R.C.No.1221 of 2019 Dated 22.07.2026 complainant is absent on a particular date. If the complainant's presence is not necessary for the progress of the case, the Magistrate should adjourn the matter or dispense with his attendance. A mechanical dismissal in such circumstances amounts to an improper exercise of discretion. It is held at paragraph Nos.16 and 17, as under: 16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum. 17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. 5. In Mohd. Azeem v. A. Venkatesh2, the Hon'ble Supreme Court held that a complaint under Section 138 of the Negotiable Instruments Act should not be dismissed for default merely because the complainant was absent on a 2 (2002) 7 SCC 726 4 Dr.YLR, J Crl.R.C.No.1221 of 2019 Dated 22.07.2026 single occasion. The Court observed that adopting an unduly technical or strict approach in such circumstances results in failure of justice and, accordingly, restored the complaint to the file of the Trial Court for disposal in accordance with law. It is held at paragraph Nos.3 and 4, as under: “3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint. 4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant. 6. The impugned order is neither reasonable nor sustainable in law. The learned Trial Court committed a material irregularity in dismissing the complaint filed under Section 138 of the Negotiable Instruments Act, 1881. Accordingly, the order dated 25.09.2019 dismissing the complaint for default/non-prosecution is liable to be set aside. 7. The Superintendent of Police, Ananthapuramu, is directed to ensure execution of the Non-Bailable Warrant issued by the learned Trial Court against the respondent/accused within a period of two (2) months from the date of receipt of a copy of this order and produce him before the jurisdictional Magistrate. 5 Dr.YLR, J Crl.R.C.No.1221 of 2019 Dated 22.07.2026 8. The learned jurisdictional Magistrate shall restore the complaint to file, proceed with the case in accordance with law, and dispose of the same expeditiously, without dismissing the complaint for default on technical grounds when the matter is pending for execution of the warrant. 9. Accordingly, the Criminal Revision Case is allowed. The order dated 25.09.2019 passed by the learned Trial Court dismissing the complaint for default is set aside. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed. _________________________ Dr. Y. LAKSHMANA RAO, J Date:22.07.2026 KMS 6 Dr.YLR, J Crl.R.C.No.1221 of 2019 Dated 22.07.2026 84 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 1221/2019 Date: 22.07.2026 KMS