JUDGMENT: This appeal is filed against the order passed by the learned Judicial Magistrate No.III Coimbatore acquitting the accused under Sec.256(1) of the Criminal Procedure Code solely on the ground that the complainant was absent on 30.4.1993. 2. I do not think it is necessary for me to go into the facts of the case since this appeal pertains to a limited question of law, namely, whether the Magistrate is justified in acquitting the accused in the absence of the complainant. No doubt, Sec.256 of the Criminal Procedure Code authorises the Magistrate to do so. However, the same Section contemplates the Magistrate to condone his absence and adjourn the case also. Therefore, it is one’s duty to use his judicial discretion in following Sec.256, Crl.P.C. 3. The Supreme Court in Associated Cement Co. Ltd. v. Keshvanand, 1998 Crl.L.R. 856 has held as follows: "Two constraints are imposed on the Court for exercising the power under Sec.256. 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. 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 justify the case being adjourned to another date due to any other reason. If the situation does not justify 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 quit unnecessary then resorting to the step of axing down the complaint may not be proper exercise of the power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." 4. In the instant case, the order is bereft of any particulars. But, on the other hand, the Magistrate has specifically stated that the accused also was absent on that date. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." 4. In the instant case, the order is bereft of any particulars. But, on the other hand, the Magistrate has specifically stated that the accused also was absent on that date. It is yet another circumstance to show that the learned Magistrate ought not to have taken the matters so lightly and acquitted the accused in his absence. Therefore, following the principles laid down by the Supreme Court in the judgment mentioned above, 1 hold that the order of the learned Magistrate is not proper and consequently, I set aside the order and remand the matter to the Judicial Magistrate No.III, Coimbatore to issue summons to the accused and to the complainant and since the matter has been pending for a long time it has to be disposed of expeditiously. Accordingly this appeal is allowed.