Mahmood Ali Khan ( 1 ) NOTICE was directed to be sent through SHO. Respondents No. 1 and 2 both have refused to receive the notice sent by regd. A. D. Post. ( 2 ) THIS petition under Section 482, Cr. P. C. has been filed by the petitioner against an order of the Metropolitan Magistrate dated 7. 1. 2000 by which his criminal complaint filed for prosecution of the respondent under Section 138 of Negotiable Instrument Act was dismissed in default. In the petition it was sub-mined that counsel for petitioner was busy in another matter and he had requested one of his colleagues to appear on his behalf in the case but he could not appear. It was further submitted that the complainant was not well and the application for his personal exemption from appearance on that date alongwith medical certificate was also handed over to the colleague, who did not appear and file that application, for this reason, the complaint was dismissed for non-appearance of the complainant and the counsel. ( 3 ) IT is further alleged that the court has passed the order for summoning of the accused person and that the accused had earlier put in appearance through one of its Director Mr. Kamal Kumar. It is requested that the impugned order dated 7. 1. 2000 be set aside and the criminal complaint be restored for proceeding with on merit. Petition is supported by an affidavit of Mr. Mukesh Jain, who is the partner of the petitioner firm. ( 4 ) COMPLAINT was dismissed after the summoning order was passed and one of the accused has also put in appearance. Notice of this petition was sent to the respondents, who have refused to accept the notice sent by regt. A. D. post, so served sufficiently but have chosen to remain absent. ( 5 ) THE criminal complaint was dismissed by the Metropolitan Magistrate in exercise of the power vested by Section 256 of Cr. P. C. which has given two options to the court in the event the complainant failed to appear at the hearing ; either to dismiss the complaint or to adjourn the case, if he finds some reason. Section 256 of the Cr. P. C. is extracted below. P. C. which has given two options to the court in the event the complainant failed to appear at the hearing ; either to dismiss the complaint or to adjourn the case, if he finds some reason. Section 256 of the Cr. P. C. is extracted below. "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 to 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". ( 6 ) THE Supreme Court in Associated Cement Co. Ltd. v. Keshavanand, air 1998 SC 596 interpreting this Section has held as under :- "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. 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 complaint 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 impairing the cause of administration of criminal justice. " ( 7 ) A similar view was earlier taken by a Division Bench of this court in Shivkumar v. Mohd. Saghir and Others, 1997 JCC 149. The case law cited above, thus, show that the Magistrate is not bound to dismiss a complaint for non-appearance of the complainant under Section 256, Cr. P. C. and he has to adopt one or the other course open to him in passing appropriate order. He has to exercise his discretion judicially. ( 8 ) IN this case the contention of the petitioner is that the petitioner was sick and that the counsel had drafted the application for his exemption from personal appearance and the application alongwith the medical certificate had been delivered by him to his colleague to appear on his behalf in the case and move the application. But the colleague lawyer neither appeared nor moved that application as a result both the complainant and the counsel remained absent at the hearing. The case was fixed for appearance of the accused at this stage. The allegations made in the petition are fully corroborated by the affidavit of the partner of the complainant. ( 9 ) HAVING regard to the facts of the case, the learned Metropolitan Magistrate had not exercised his power judicially and right to have considered for granting adjournment as the present of the complainant in person was not essential. ( 10 ) HAVING regard to the above facts and the law laid down by the Supreme court in the above cited case,, the impugned order dated 7. 1. 2000 passed by the learned Metropolitan Magistrate is set aside. The criminal complaint is restored and it shall be proceeded with from the stage on which it was pending on 7. 1. 2000. Petition stands disposed of. Petitioner shall appear before the trial court on 01. 10. 2002.