The principle of natural justice must be upheld, and courts should consider the reasons for a party's absence before dismissing a case.

1. The appellant herein has filed the complaint in C.C.No.8251 of 2007 against the respondent herein before the learned IX Metropolitan Magistrate, Saidapet, Chennai under Section 200 of Cr.P.C., to deal with the respondent under Sections 138 of the Negotiable Instruments Act, 1881.

2. In the complaint the appellant has alleged that he had paid a sum of Rs.3,00,000/- to the respondent as an advance for the construction of a flat as per the agreement entered into between him and the respondent. The respondent being a builder had failed to develop the project in time and as such there was an inordinate delay in constructing the flat and as a result of which, the appellant had revoked the agreement and requested the respondent to refund the advance of Rs.3,00,000/-. However, the respondent had not chosen to refund the advance amount.

3. Being aggrieved with this, the appellant had filed an Original Petition in O.P.No.60 of 2002 before the District Consumer Disputes Redressal Forum (South) Chennai, for the refund of the above said amount. On 03.12.2004, the District Consumer Disputes Redressal Forum had directed the respondent/accused to refund the amount of Rs.3,00,000/- along with interest at the rate of 12% per annum and also to pay a sum of Rs.10,000/- towards compensation for mental agony and an another sum of Rs.1,000/-towards costs of the petition. Together, the respondent/accused was directed to pay a sum of Rs.4,70,000/-.

4. As the respondent/accused did not comply with the above direction, the appellant filed an execution petition vide E.P.No.90 of 2005 in O.P.No.60 of 2002. Thereafter, on 21.07.2006 the respondent/accused had acknowledged his liability for a sum of Rs.5,07,183/- proportionately, before the abovesaid forum, barring a sum of Rs.49,000/-paid through ICICI Bank by way of Demand Draft dated 13.07.2006. The respondent by way of discharging his liability had issued the following four cheques.

S.No. ChequeNo. Date Amount (Rs.)

1. 186546 21.07.2006 75,000/-

2. 186547 05.08.2006 1,25,000/-

3. 186548 19.08.2006 1,25,000/-

4. 186549 02.09.2006 1,33,183/-

Total 4,58,183/-

5. When those cheques were presented they were bounced back with the endorsement as 'insufficient funds". Hence after issuing a statutory notice as required under Section 138(b) of the Negotiable Instruments Act, 1881, the appellant had filed a complaint before the above said Magistrate's Court. It appears from the record that a Non-bailable Warrant was pending unexecuted against the respondent/accused.

6. When the matter stood thus, the appellant was not able to appear on 06.06.2011, on which date the case stood posted. On account of his absence the learned IX Metropolitan Magistrate, Saidapet, Chennai has passed an order dismissing the complaint filed by the appellant on 06.06.2011 with the following observation "complainant absent. No representation. Accused NBW pending since 25.03.2009. Steps not taken inspite of the direction. Hence the complaint is dismissed U/s.256(1) Cr.PC."

Challenging the legality of the order of dismissal, the appellant has approached this Court by way of this appeal with a special leave petition.

7. Leave was granted on 09.08.2011

8. Mr.Aravind Subramaniam, learned counsel for the appellant has submitted that the order of dismissal by the learned IX Metropolitan Magistrate, Saidapet, Chennai, is absolutely erroneous and even without giving proper notice to the complainant, the learned IX Metropolitan Magistrate, Saidapet, had proceeded to dismiss the complaint only on trivial ground.

9. The learned counsel has also added that already a Non-bailable Warrant was pending against the respondent/accused. But, despite a direction, the Non-bailable Warrant was not executed by the concerned police. Under these circumstances, the appellant, on account of some unavoidable reasons was not able to make his presence on 06.06.2011 and without considering the reason for his absence, the learned IX Metropolitan Magistrate, Saidapet