Judgment Shashi Kant Sharma, J.-Instant appeal filed by complainant-appellant Mittal Book and Stationers, Durgapura, Jaipur is directed against the order dated 18th August, 2000 passed by learned Civil Judge (Jr. Division) and Judicial Magistrate, 1st Class, Sanganer whereby a complaint filed by the appellant was dismissed. 2. The relevant facts essential for the disposal of this appeal are as under: This appellant filed one complaint against respondent Mahendra Singh Solanki for the offence punishable under Section 138 of Negotiable Instrument Act. The Lower Court took cognizance against the accused-respondent for the offence under Section 138 of Negotiable Instrument Act and accused appeared in the Court. As it was a summon case, so, substance of accusation was read over to the accused. Accused pleaded not guilty and requested for the trial. Complainant examined himself and closed his evidence. Accused respondent was examined under Section 313, Cr.P.C on 7th July, 2000 and case was fixed for 19th July, 2000 for defence evidence, on the day defence evidence was not produced and on the request of the accused, again the case was posted for defence evidence on 4th August, 2000, on that day, due to some condolence, defence evidence could not be recorded and the case was adjourned for 18th August, 2000 for recording defence evidence and on 18th August, 2000, complainant did not appear in the Court but defence witness was present, therefore, the learned Lower Court dismissed the complaint. Against that order, this appeal is filed. Record of the Lower Court was called for. Arguments heard. 3. It is argued on behalf of the appellant-complainant that impugned order passed by Lower Court is absolutely illegal. It is contended that on that day, presence of the complainant was not necessary because prosecution witness was already examined and accused was already examined under Section 313, Cr.P.C and case was posted for defence evidence therefore, Lower Court should not have dismissed the complaint on the premise that complainant was not present. It is argued that Judgment of Hon’ ble Supreme Court reported in I (1998) CCR 82(SC)= 11(1998) SLT 28= 1998(1) SCC 687 (Associated Cement Company Ltd. v. Keshvanand) is relevant in this case. 4. None was present on behalf of the respondent accused, therefore, arguments on behalf of respondent could not be heard. 5. I haveexamined entire record of the Lower Court and impugned order dated 18.2000 and relevant provisions of law. 4. None was present on behalf of the respondent accused, therefore, arguments on behalf of respondent could not be heard. 5. I haveexamined entire record of the Lower Court and impugned order dated 18.2000 and relevant provisions of law. The case pending before Lower Court was a summon case. In this matter Section 256 of Cr.P.C is relevant. Hon’ble Supreme Court has held in the case of Associated Cement Company Ltd. (supra) as under: “Section 247 of the Criminal Procedure Code, 1989 (Section 256 of new Code) affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by complainant if he does not turn up to the Court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the Court has a duty to acquit the accused in invitum, Reading Section 247 of the Criminal Procedure Code, 1898 (Section 256 of new Code) in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. The first is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent, on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justiir the case being adjourned to another date due to any other reason. If the situation does not justiir the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant, on that day, was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. If the situation does not justiir the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant, on that day, was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without imparting the cause of administration of criminal justice.” 6. After reading the relevant provisions of law and above ruling of the Apex Court, it is clear that Section 256, Cr.P.C. affords protection to an accused against tactics of the complainant but it does not mean if the complainant is absent, the Court has a duty to acquit the accused in invitum. It is also clear that if the presence of the complainant on a particular day was not necessary then the Court should not dismiss the complaint on the ground of the absence of complainant but the Court should proceed in the case. Looking to the facts of the present case, it is clear that in this matter the evidence of prosecution was already recorded, accused was also examined, case was fixed for defence evidence and on that day when the case was fixed for defence evidence, the complainant became absent, therefore, under these circumstances, Lower Court should not have dismissed the complaint on the premise of absence of complainant. Under these circumstances, the impugned order dated 18.2000 is illegal and is liable to be set aside. 7. Consequently, the appeal is allowed. The impugned order dated 18.2000 is set aside. Case is remanded back to Trial Court for further trial.