JUDGMENT : Heard on the question of admission as well as for final hearing. 2.A private complaint was filed under Section 138 of the Negotiable InstrumentAct (for short "the Act") by the complainant against theaccused/respondent before the Trial Court. The case was fixed for evidence on27-6-2007, but the appellant was not present, hence the complaint was dismissedand the accused/respondent was discharged. 3.It has been argued on behalf of the appellant that the Advocate for theappellant failed to make an entry in his Advocate diary to the effect thatCriminal Complaint No. 5518/06 is listed for evidence on 27-6-2007 and hence hecould not appear before the Court and also he could not inform his client forthe same, therefore, the client and the Advocate could not appear in the Courton 27-6-2007 and the case was dismissed by the Trial Court. The Trial Court hastaken a strict view and has not considered the fact that the complaint wasgenuine and on single default of the appearance, the case was not due to bedismissed, hence the appeal be accepted. 4.Arguments considered. 5. In Mohd . Azeem Vs . A. Venkatesh andanother, reported in (2002) 7 SCC 726 , it has been held that the Court adopteda very strict and unjust attitude resulting in failure of justice. In ouropinion, the learned Magistrate committed an error in acquiring the accusedonly for absence of the complainant on one day and refusing to restore thecomplaint, when sufficient cause for absence was shown by the complainant. 6.In Right Services, Ratlam Vs. Chhotu Bhaiya Road Lines, Ratlam and another, reported in 2003(3) M.P.H.T. 561 = 2003 (2) MPLJ 523 , it has beenheld that while dismissing the complaint in the absence of complainant, theCourt should not pass the orders of dismissal of complaints and acquit theaccused persons mechanically. The Court should consider the nature of theoffence and the material produced by the complainant and also the stake whichcomplainant is having in the matter. If on solitary hearing,or hearings for one or the other reasons if the complainant is not present,normally the Court should adjourn the case and should not arbitrarily exerciseits discretion refusing the exemption. Normally in complaint cases filed underSection 138 of the Negotiable Instruments Act when a complaint is filed, thecomplainant is having a stake in the matter. Therefore, in the absence of thecomplainant, the complaint should not be dismissed immediately. Normally in complaint cases filed underSection 138 of the Negotiable Instruments Act when a complaint is filed, thecomplainant is having a stake in the matter. Therefore, in the absence of thecomplainant, the complaint should not be dismissed immediately. The Courtshould either adjourn the case or may proceed to hear the case under theproviso of Section 256 of the Cr.PC and if thecomplainant is represented by an Advocate or by Officer conducting theprosecution or if the personal attendance of the complainant is not necessary,the Court should either grant exemption, suo motu or on the application of the Advocate, as the order ofdismissal of complaint operates as a final order. Therefore, normally, itshould be passed after proper application of mind and exercise of judicialdiscretion. Impugned orders, dismissing the complaints and acquitting therespondent/accused are hereby set aside. 7.In the present case, the complaint was filed under Section 138ofthe Act for the dishonour of cheque of Rs . 40,000/- and the case was fixed for evidence on 27-6-2007,but on that date, on single default of appearance of the complainant and hisAdvocate, the Court dismissed the complaint and discharged theaccused/respondent. The action taken by the Court was more harsh and strict.The case ought to have been adjourned for the evidence of the parties, the Court should not dismiss the complaint. Theappellant was represented through Counsel, then theCourt should have adjourned the hearing of the case for some other day insteadof dismissing the complaint. 8.Keeping in view the above law and the facts and circumstances of the case, thepresent appeal is accepted and the order dated 27-6-2007 is hereby set aside and it is ordered that thecomplaint filed by the appellant be restored to its original number. The TrialCourt to issue afresh notice to the parties to appearbefore the Trial Court on 6-1-2010 . Accordingly,this appeal is disposed of.