D. S. R. VARMA, J. ( 1 ) THIS appeal is directed against the order dated 6-12-2000 passed by the learned XXIII metropolitan Magistrate, Hyderabad, dismissing C. C. No. 92 of 1999 under section 256 of the Code of Criminal procedure, 1973 (for short the Code ). ( 2 ) IN spite of service of notices on respondent Nos. 1 and 2 there is no representation on their behalf. ( 3 ) FROM the impugned order it is obvious that non-bailable warrants of arrest are pending execution as against the accused as on the date of hearing of the case. As pointed out by the Apex Court in Associated Cement co. Ltd. v. Keshavanand the case was actually posted for the appearance of the accused and the NBWs issued against the accused remained unexecuted. Without the presence of the accused, there could not be any progress in the case. In such a case, it is not fair and reasonable on the part of the learned magistrate dismiss the case in exercise of his powers under Section 256 of the Code. ( 4 ) FOR all the above reasons and in view of the Judgment of the Apex Court in Associated cement Co. Ltd. since the presence of the complainant is not actually necessary and since the case, itself, was posted for the appearance of the accused by executing the nbws already issued the order impugned is liable to be set aside the accordingly it is set aside. ( 5 ) ACCORDINGLY, the Appeal allowed by setting aside the order passed by the learned xxiii Metropolitan Magistrate, Hyderabad in C. C-No. 92 of 1999 on 6-12-2000. The matter is remitted to the Court below for fresh disposal in accordance with law.