Judgment.- This appeal by a private party is against the order of the Judicial First Class Magistrate, Devakottai, acquitting the accused for non-appearance of the complainant. 2. It is pointed out by the learned Counsel for the appellant that a complaint was filed on 21st November, 1977, and a sworn statement was recorded on 3rd January, 1978. The prosecution witnesses 1 and 2 were examined on 11th July, 1978, and P.W. 3 was examined on 8th August, 1978, and the evidence for the prosecution was closed on 8th August, 1978. The case was posted to 21st December, 1978, for examination of defence witnesses and after examination of defence witnesses, the case was posted for arguments on 26th December, 1978. On that day, as there was terror initial rain the complainant and his advocate could not be present in Court and the Court acquitted the accused for non-appearance of the complainant. 3. Though the certified copy of the order does not clearly say whether the Counsel for the accused was present or not, the original order written by the Magistrate, shows that the Counsel for the complainant was also not present. No application for adjournment was presented and therefore the learned Magistrate acted under section 256 of the Code of Criminal Procedure. It is now pointed out to me by the learned Counsel for the appellant that the Magistrate, soon after finishing the case, left the Court as he was under orders of transfer. He was filed an affidavit to that effect. But the remarks of the Magistrate was not called for on this affidavit and we are not in a position to say whether those allegations made in the affidavit are correct or not. It is pointed out for the respondents by their Counsel that there is no illegality in the order passed by the Magistrate as the Magistrate is not bound to wait for the complainant. Natesa Naicker v. Man Gramani1 was a case which arose upon a. complaint filed by the petitioner therein against the respondent in that case alleging commission of offences under sections 447 and 426 of the Indian Penal Code. That case was posted for hearing on 6th September, 1946. Alter examination of the complainant, it was adjourned to 16th December, 1946, for further evidence. That case was posted for hearing on 6th September, 1946. Alter examination of the complainant, it was adjourned to 16th December, 1946, for further evidence. On that day when the case was called, the complainant was not present either in person or by pleader and the Magistrate acted under section 247 of the Code of Criminal Procedure (Old Code) and acquitted the respondent. The petitioner urged that he was present in Court from 10-00 a.m., and just before the case was called, the advocate far the accused sent him to fetch his vakil as the case was about to be called, that the immediately went to the civil Court and brought him before Magistrate's Court, but in the mean time the case has been called end the respondent was acquitted. These allegations were refuted by the respondent in that case. Yahga Ali, J., in dealing with the revision, observed: “It will be apparent from the language of the section that when in a summons case the complainant does not appear, it is imperative on the part of the Magistrate to acquit the accused, unless there is a proper reason for adjourning the hearing of the case. It is not the case of the complainant hat there was try such reason of which the Magistrate was aware at the time he called the case and the complainant was absent. In those circumstances, there was no discretion in the matter, the Magistrate was bound by the statute to acquit the accused. Where therefore, an order has been passed in confirmity with statutory duty, it must be held to be a proper and correct order, and there can be no question of revising such an order merely because it would cause some hardship to the party.” I am in respectful accord with this view of the learned Judge. 5. In Tonkya v. Jaganna1 a Division Bench of this Court took the view that a Magistrate is entitled to call up a summons case at any time of the day to which it is posted and to acquit he accused under section 247 of the Criminal Procedure Code (old Code), is the complainant is not then present and that he is not bound to wait for the complainant to appear at any time before the closing of the day in order to take up and dispose of a case. (Brackets supplied). (Brackets supplied). Waller, J., advises some latitude to be given to the complainant before the Magistrate decides to apply section 247, but then the learned Judge, observed: “If, however, he decides to act at once, when a complainant fails to appear on his case being called on, I am clearly of opinion that he has jurisdiction to do so and that he is not obliged to wait till the close of the Court day before doing so.” Though, these cases deal with revision, yet the observations, in my view, can apply to cases in appeal also. It is therefore clear that the order acquitting the respondents is not improper and is not incorrect. In that view, this appeal fails and is dismissed. R.S.R. ----- Appeal dismissed.