( 1 ) APPELLANT filed complaint under Sec. 138 of the Negotiable Instruments Act, 1881 (for short "the Act"), against respondents 2 to 6, in which three witnesses were examined on behalf of the appellant and Exs. P-1 to P-21 were marked. Thereafter, the case was posted to 08-05-2003 for examination of respondents 2to6 (theaccused) under Section 313 Cr. P. C. on 08-05-2003, respondents 2 to 6 were absent. Their Advocate in the trial Court was present and as the Presiding Officer was on vacation, the case was posted to 09-06-2003, on which day, both the appellant and respondents 2 to 6 were absent. Petition to condone the absence of the appellant was filed and allowed. Counsel for respondents 2 to 6, filed a petition under section 205 Cr. P. C. , but did not press it. So, the petition was dismissed and the case was posted to 18-06-2003. On 18-06-2003, the appellant was present and respondents 2 to 6 were absent. Office was directed to issue notice to respondents 2 to 6/accused before ordering Non-Bailable Warrants againstthem and the case was posted to 25-06-2003. On 25-06-2003, the appellant was present and respondents 2 to 6 were absent. So the non-Bailable Warrants were ordered to respondents 2 to 6 and the case was adjourned to 15-07-2003. As the Non-Bailable Warrants were not being executed, on a petition filed by the appellant, an Advocate Commissioner was appointed for execution of the Non-Bailable warrants. The Advocate Commissioner returned the warrants on 24-02-2006 on the ground that respondents 2 to 6 were not available. Thereafter, the case underwent some adjournments. On 21 -08-2006, the appellant was present and as Non-Bailable Warrants were pending against respondents 2 to 6, the appellant against filed a petition under section 72 Cr. P. C. to appoint an Advocate commissioner, which was allowed and an advocate Commissioner was appointed with a direction to execute the Non-Bailable Warrants on or before 21 -09-2006. On 21 -09-2006, the appellant was present and memo was riled stating that respondents 2 to 6 are not found. So the appellant was directed to take steps to execute the Non Bailable warrants by 29-09-2006, with an observation that if he fails to take steps, the complaint would stand dismissed. On 29-09-2006 and 13-10-2006, the Presiding Officer was on leave. So the appellant was directed to take steps to execute the Non Bailable warrants by 29-09-2006, with an observation that if he fails to take steps, the complaint would stand dismissed. On 29-09-2006 and 13-10-2006, the Presiding Officer was on leave. On 16-10-2006 the appellant was absent and a petition for condoning his absence was filed and allowed. On the ground that the appellant failed to take steps to execute the Non-Bailable Warrants, the trial Court, by the order under appeal dismissed the complaint. ( 2 ) THE assumption of the trial Court that the appellant has an obligation to execute Non-Bailable Warrants issued by it to arrest the accused is, to say the least, incorrect. If the accused go into hiding, and if the police who have a duty to arrest the accused and bring them before the Court in compliance with the direction to arrest, fail to produce them before it, in execution of the Non-Bailable Warrants issued by it, the consequences for the lapse or the inability on the part of the police to execute the Non-Bailable Warrants cannot be visited upon the complainant. To say the least dismissal of a complaint for the inability of police to execute the Non-Bailable Warrant entrusted to them on the ground that complainant did not take steps for the execution, amounts to adding insult to injury, and putting a premium on the in efficacy of the police to obey the distinction issued by the court. ( 3 ) IF the Non-Bailable Warrant, entrusted to police are not executed, the Court has to take steps to see that they are executed, by taking such steps a are available to it. ( 4 ) AN observation was made in the order under appeal that inasmuch as the appellant did not pay 'continuation batta,' there is a default on his part, obviously failing to keep in view sub-rule (2) of Rule 235 of the Criminal rules of Practice, which lays down that continuation batta is payable only if there is a lapse on the part of party, but not in cases where the delay is attributable to the officers of the Court. When a Non-Bailable Warrant is entrusted to police forexecution, police act as officers of court. If they are unable to execute the warrant entrusted to them, it is their fault, but not the fault of the complainant. When a Non-Bailable Warrant is entrusted to police forexecution, police act as officers of court. If they are unable to execute the warrant entrusted to them, it is their fault, but not the fault of the complainant. So a complainant need not pay any continuation batta, forthefailure of the police to execute the warrants entrusted to them. ( 5 ) THE appellant tried his best to get the warrants executed and got appointed commissioners and spent a huge amount for their travel and their fees also. The commissioners pleaded helplessness and returned the Warrants of commission. So the fault, if any, is on respondents 2 to 6, but not on the appellant. ( 6 ) THE fact that respondents 2 to 6 are appearing through a counsel in this appeal shows that they are just watching the proceeding, and are enjoying the fun of the court putting the appellant to trouble, for the lapse on their part in attending the Court. Having known that the case was posted for their examination under Section 313 Cr. P. C. respondents 2 to 6 failed to appear before the trial Court. When the case is posted for section 313 Cr. P. C. , examination of the accused, presence or absence of the complainant in a complaint under Section 138 of the Act does not make any difference because court cannot proceed further in the case even if the complainant was present, in the absence of the accused. So the trial Court committed a grave error in dismissing the complaint by finding fault with the appellant, for no fault on its part. ( 7 ) THEREFORE, the criminal appeal is allowed and the case is remitted to the trial Court for fresh disposal according to law on merits. Since respondents 2 to 6 are appearing in this court through a Counsel, they are directed to appear before the trial Court on 24-09-2007 and cooperate with the trial Court in disposal of the case. Since respondents 2 to 6 are appearing in this court through a Counsel, they are directed to appear before the trial Court on 24-09-2007 and cooperate with the trial Court in disposal of the case. If respondents 2 to 6 fail to appear on 24-09-2007, the trial Court shall take steps to secure their presence by addressing the superior police authorities through proper channel, and shall not dismiss the complaint on the ground of the failure of respondents 2 to 6 to appear before the court, as done by the order under appeal, even if the appellant remains absent, because presence of the appellant would not help the further progress of the case. .