JUDGMENT : Mohammad Nawaz, J. 1. Heard the learned counsel for appellant and perused the material on record. This appeal is preferred against the order dated 20.12.2021 passed by the court of XXXVIII Additional Chief Metropolitan Magistrate at Bengaluru City, in C.C. No. 33786/2018, whereby the learned Magistrate has dismissed the complaint for default, filed against the respondents alleging an offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act"). 2. It is the case of the complainant that a cheque bearing No. 105562 drawn on Yes Bank of Sahakarnagar Branch towards part payment issued by the accused/respondents was dishonoured for "funds insufficient" and therefore, the complainant issued a legal notice calling upon the accused to make the payment and in spite of receipt of the said notice, the accused failed to make any payment and therefore, he filed a complaint alleging an offence under section 138 of the N.I. Act. 3. The order-sheet would disclose that the complaint was presented on 28.11.2018. The complainant filed his affidavit in lieu of sworn statement and Exhibits P1 to P18 were marked and subsequently, case was registered and summons was issued to the accused. In spite of service of summons, the accused failed to appear and therefore, NBW came to be issued. Further, NBW was re-issued and in spite of that, the accused was not secured. The order-sheet would also disclose that the matter was referred to Lok Adalat and later on 20.12.2021, since the complainant was not present and there was no representation on his behalf, learned Magistrate proceeded to dismiss the complaint. 4. It appears that after NBW was re-issued, the complainant failed to tender correct address of the accused. However, learned counsel for the appellant submits that summons issued to the very same address was served on the accused and he has deliberately avoided the NBW. He submits that, if an opportunity is given, the complainant will diligently prosecute the complaint. 5. From the material on record, I do not find that there was any intentional lapse on the part of the complainant/appellant. In fact, the summons issued to the accused was served, but he remained absent, as such, NBW was issued. In the facts and circumstances, learned Magistrate was not proper in dismissing the complaint. Hence, the following: ORDER: (i) Criminal appeal is allowed. In fact, the summons issued to the accused was served, but he remained absent, as such, NBW was issued. In the facts and circumstances, learned Magistrate was not proper in dismissing the complaint. Hence, the following: ORDER: (i) Criminal appeal is allowed. The impugned order dated 20.12.2021 passed by the XXXVIII Additional Chief Metropolitan Magistrate, Bengaluru City, in C.C. No. 33786/2018 is set-aside. (ii) The complaint shall be restored to its file and the learned Magistrate is directed to proceed with the case in accordance with law. (iii) The complainant shall appear before the trial Court on 13.07.2022, without further notice.