JUDGMENT Kuldip Chand Sood, J.—Cr.M.P. (M) NO. 234 of 2003. Leave to appeal granted. The application stands disposed of. Cr. Appeal No. 602 of 2003 2. Be registered. 3. Heard. 4. It appears that the appellant lodged a complaint, under Section 138 of the Negotiable Instruments Act, against the respondent. This complaint was being tried by the learned Judicial Magistrate 1st Class, Court No. 2, Shimla. On 24th October, 2002, the complainant failed to appear and complaint was dismissed in default resulting into acquittal of the respondent-accused. This complaint was filed by the complainant through one Sh. Pankaj Gupta as he was authorised by the company-petitioner to lodge such complaint. 5. The complaint was dismissed with a terse order which reads: "24.10.2002 Present: None. Be called again. Called again. Present : None. Be called agian. Called again. Presnet : None for complainant. Sh. S.S. Chauhan, counsel for accused. Accused not present. Complaint is hereby dismissed in default. Accused acquitted. Be consigned. Announced. JMIC (2), Shimla." 24.10.2002 6. The learned trial Magistrate dismissed the complaint without going into the fact whether the presence of the complainant was necessary. 7. As observed by the Apex Court in Associated Cement Co. Ltd. v. Keshvanand in (1998) 1 SCC 687, Section 247 of the Code of Criminal Procedure provides deterrence against dilatory tactics on the part of the complainant who set the law in motion by his complaint and thereafter put the accused to unnecessary harassment by his non-appearance in the Court. In this way, this provision affords protection to an accused against the tactics of the complainant but at the same time it does not mean if the complainant is absent and does not attend the Court, the Court is bound to dismiss the complaint and acquit the accused. 8. A reading of Section 247 of the Criminal Procedure Code, shows that the Magistrate must apply its mind whether it will not be fair and proper to adjourn the matter. Mere for the non presence of the complainant Magistrate should not dismiss the complaint and acquit the accused. The Magistrate also shall not dismiss the complaint if the presence of the accused is not necessary on that particular date, The Magistrate has ample powers to dispense with the attendance of the complainant and proceed with the case. Mere for the non presence of the complainant Magistrate should not dismiss the complaint and acquit the accused. The Magistrate also shall not dismiss the complaint if the presence of the accused is not necessary on that particular date, The Magistrate has ample powers to dispense with the attendance of the complainant and proceed with the case. It is only, if the Magistrate takes a conscious view that the situation does not warrant either adjournment of the case or the presence of the complainant was necessary on that day that the Magistrate may dismiss the complaint. 9. There is nothing in the order to suggest that the presence of the complainant was necessary and the case did not warrant adjournment for some reason. On that date, it may be noticed, even accused was not present and therefore the case would not, in any event, have progressed. It would have been appropriate for the learned trial Magistrate, in the given facts, to adjourn the hearing. The dismissal of the complaint and acquittal of the accused on that ground is unsustainable. 10. In result, the petition is allowed. The impugned order dated 24th October, 2002 is set-aside. The learned trial Magistrate shall re-register the case at its original number in accordance with law. The party shall appear before the learned trial Magistrate Court on 24th March, 2004. -