1 ) THE appellant has sought leave to appeal against the order of the learned Metropolitan Magistrate dismissing the complaint of the appellant resulting in acquittal of the accused. In reply to the leave application, it is submitted by the counsel for the accused that no such application was maintainable because dismissal order does not amount to acquittal. I consider that the stand taken by the respondent is untenable under the law. When a complaint is dismissed, the consequence is that an accused stands acquitted. I consider that there are sufficient reasons for grant of leave to the appellant and the application is allowed. ( 2 ) THIS appeal has been preferred against the order of learned metropolitan Magistrate dated 6. 6. 2005 whereby the complaint of the appellant was dismissed for non-appearance. The case on that day was fixed for appearance of the accused, whose bailable warrants to the tune of Rs. 5,000/- were issued by the Metropolitan Magistrate on previous hearing. On 6th June, 2005, neither the accused nor the complainant appeared. Learned Metropolitan Magistrate therefore dismissed the complaint for non-appearance. The case on 6th June, 2005 was fixed only for appearance of the accused and no material work was to be performed by the complainant. Under these circumstances, when the complainant did not appear, Magistrate was not bound to dismiss the complaint for non-appearance but should have adopted other course open to him. Where discretion is given to the Magistrate to proceed in one or the other way on non-appearance of the complainant, this discretion must be exercised by the learned Metropolitan Magistrate in a judicious manner. The complainant had been appearing on the previous hearings and had been taking steps for service of respondent, it is submitted by the complainant that on 6th june, 2005 complainant did not appear because the date noted with the complainant was 8th June, 2005 and under this confusion he and his counsel both missed the date. ( 3 ) SUPREME Court in AIR 1998 SC 596 Associate Cement Co. Ltd. v. Keshavanand and this Court in 2002 (100) DLT 211 Indocon Micro Engineers v. Pine technology P. Ltd. had observed that if the presence of complainant was not necessary on a particular date of hearing, the Magistrate should refrain from resorting to the step of axing down the complaint. The Magistrate should exercise discretion in a judicious manner. Ltd. v. Keshavanand and this Court in 2002 (100) DLT 211 Indocon Micro Engineers v. Pine technology P. Ltd. had observed that if the presence of complainant was not necessary on a particular date of hearing, the Magistrate should refrain from resorting to the step of axing down the complaint. The Magistrate should exercise discretion in a judicious manner. ( 4 ) I, therefore, allow this appeal. The order of the learned metropolitan Magistrate is set aside. Parties are directed to appear before the learned Metropolitan Magistrate concerned on 30th August, 2007. The appeal stands disposed of.