JUDGMENT :

C. Praveen Kumar, J.

1. By means of this petition under Section 397 and 401 of the Code of Criminal Procedure (for short “Cr.P.C.”), the petitioner/complainant is challenging the order, dated 31.12.2007 passed in C.C.No.790 of 2004 on the file of the Court of II Additional Judicial First Class Magistrate, Tanuku by which his complaint was dismissed, under Section 204 (4) Cr.P.C, as the complainant was absent and had not filed the publication.

2. The revision was admitted on 18.02.2008 and notice was issued to the respondent No.2 on 26.02.2008 through Court of II Additional Judicial Magistrate of I Class, Tanuku. As per the office report, the notice sent to respondent No.2 has not yet returned. In view thereof, as the notice was sent on 26.02.2008, about 14 years back through Court and has not been returned unserved, the notice on respondent No.2 is deemed to be sufficient. No representation from the side of the respondent No.2.

3. The petitioner filed complaint under Sections 138/142 of the Negotiable Instruments Act (the N.I. Act) against the respondent No.2 on the averments inter alia that the complainant, is a partnership firm carrying on the business of maintaining books of account in the regular course of its business. The accused/respondent No.2 borrowed an amount of Rs.45,000/- (Rupees forty-five thousand only) from the complainant and executed a promissory note on 18.04.2004 agreeing to repay the loan with interest at 24% per annum and in discharge of such liability, the accused gave a cheque bearing No.707427 on 28.05.2004 for Rs.45,000/- (Rupees forty-five thousand only) drawn on Andhra Bank, Bhimavaram. The cheque on presentation in the bank was dishonored due to „funds insufficient’ on 19.09.2004, upon which the complainant served a statutory notice to the accused on 18.10.2004, but neither any reply was submitted nor the payment was made by the accused/respondent No.2.

4. Sri Raghu Prasad, learned counsel, representing Sri Sai Gangadhar Chamarty, learned counsel for the petitioner/revisionist submits that the case proceeded on various dates, but on one date 31.12.2007, the complainant was absent and consequently the complaint was dismissed under Section 204 (4) Cr.P.C. He submits that the complainant was diligently prosecuting the case and except on 31.12.2007 at no point of time he was absent, and even the absence 31.07.2007 was, due to the fact that the complainant suffered with viral fever and was advised bed rest. The learned Magistrate ought to have considered that valuable right of complainant was involved and ought to have fixed some other date instead of dismissing the complaint for the single absence.

5. Sri S.Venkata Sainath, learned Special Assistant Public Prosecutor, fairly submits that the dismissal of the complaint for the single absence of the complainant is not the sound exercise of judicial discretion and has very fairly placed before the Court, the judgment of the Hon’ble Apex Court in the case of Mohd. Azeem vs. A.Venkatesh and Another, 2002 7 SCC 726, in which the Hon’ble Apex Court observed that for the absence of one single date, the Magistrate in its discretion ought not to have dismissed the complaint.

6. I have considered the submissions advanced and perused the material on record.

7. From perusal of the order, dated 31.12.2007, it is evident that the dismissal of the complaint is under Section 204 (4) Cr.P.C. as the complainant was absent on that date and the publication was not filed.

8. Section 204 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”) provides for issuance of process and subsection (4) thereof provides that where by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. Section 204 of Cr.P.C is being reproduced as under :-

"204. Issue of process.

(1) If in the opinion of a Magistrate