( 1 ) THE complainant in C. C. No. 339 of 1995 has filed the present appeal against the acquittal. The appellant filed a private complaint under Section 138 of the Negotiable Instruments Act against the first respondent herein who is the accused therein. The complainant and his counsel were not present on 20. 10. 1997 and on account of the default on the part of the complainant and his counsel the VIII Metropolitan Magistrate, Vijayawada, on 21. 01. 997 acquitted the accused under Section 256 of the Code of Criminal Procedure. ( 2 ) IT is represented by the learned counsel appearing for the appellant that the whole evidence was completed and the C. C. No. 339 of 1995 was coming up for arguments and the date of adjournment was wrongly noted as 30th October, 1997 instead of 20th October, 1997 and since the complainant s counsel was not present on that day, the matter was adjourned to 21. 10. 1997 i. e. , the next day on which date the Court below passed the impugned order dismissing the complaint and acquitted the accused. There is no gainsaying that the evidence was adduced in this case and the case was coming up for arguments. Section 256 of the Code of Criminal Procedure is germane for consideration in the context and it reads as under:"256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. "[emphasis is mine] ( 3 ) A perusal of the provision herein above excerpted shows that the accused can be acquitted for the default of the complainant on the date appointed for his appearance or on any subsequent date to which the case stands adjourned. If for any reason, the Magistrate thinks it proper to adjourn the hearing of the case to some other day, the accused shall not be acquitted. The proviso engrafted under the section elucidates the legal position further that where the complainant is represented by a counsel or where the personal attendance, in the opinion of the Magistrate, is not necessary, the Court can dispense with his attendance and proceed with the case notwithstanding the fact that the complainant is absent. Sub-section (2) thereof further shows that even if the complainant is dead, the situations obtaining inter alia in sub-section (1) and the proviso engrafted thereunder would apply. In other words, even if the complainant is dead, the case can be proceeded with provided the other conditions enumerated herein above are satisfied. ( 4 ) HAVING regard to the same, it becomes obligatory on the part of the Court to see as to whether, although the complainant is absent on a particular day, the personal attendance of the complainant is essential on that day for the progress of the case. The Court has to further see that whether the situation obtaining on that day does not justify the case being adjourned to another date. In either case, if the Court is of the opinion that the absence of the complainant will not hamper the progress in the case or in the wake of justifiable reasons to adjourn the case, it is not expedient in the interests of justice to throw away the complaint and acquit the accused. The Court is endowed with the discretion to be exercised not arbitrarily but in a justifiable manner. It is to be noted that if the complaint is dismissed and the accused is acquitted, the remedy for the complainant is to file an appeal as against the order of acquittal. The Code of Criminal Procedure has not envisaged any provision to seek such a default order to be set aside. It is to be noted that if the complaint is dismissed and the accused is acquitted, the remedy for the complainant is to file an appeal as against the order of acquittal. The Code of Criminal Procedure has not envisaged any provision to seek such a default order to be set aside. Of course, a second complaint can be maintained on the same facts but subject to the other limitations engrafted in the Code of Criminal Procedure on the powers of the Court to take cognizance. Therefore, such unmerited acquittal would cause any amount of hardship to the complainant who approaches the Court complaining wrong done to him. Under such circumstances, it is always expedient to keep in view all these aspects at the time when the Court has inclined to exercise its discretion in either way. I am reinforced in my above view by the Judgement of the Apex Court in ASSOCIATED CEMENT CO. LTD. v. KESHVANAND1 wherein it has been held in para 14 thus:"14. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. 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 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 there be exercised judicially and fairly without impairing the cause of administration of criminal justice". 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 there be exercised judicially and fairly without impairing the cause of administration of criminal justice". [emphasis is mine] ( 5 ) COMING to the instant case, inasmuch as the whole of the trial process well-nigh has come to an end except addressing the arguments in the case, the default on the part of the complainant would not in any way hamper the progress in the case. The presence of the complainant or his default either way may not have any significant bearing. At any rate, the progress in the case cannot be stopped on account of the same. The facts emanating from the case will not warrant, in my considered view, the exercise of the discretion by the Court below in the manner in which it has been exercised. The resultant hardship in sequel to the order of acquittal would certainly cause any amount of hardship to the complainant who prosecuted obviously his case almost to the logical end. The Court ought to have been wary under the above circumstances in having passed the impugned order to the chagrin of the complainant. ( 6 ) FOR the foregoing reasons, the appeal is allowed and the impugned order is hereby set aside. Consequently, the C. C. No. 339 of 1995 stands restored to the file. The Court below should make endeavour to dispose of the case as early as possible.