Hon'ble Dr. GOMBER, J.—The appellant (complainant) initially filed leave to appeal against the order dated 3.8.2009 passed by Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur, in Criminal Case No. 785/2006 under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred as 'the Act') whereby his complaint was dismissed and the respondents (accused persons) were acquitted of the offence under Section 138 of the Act. In view of the amended provisions of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), complainant's appeal was admitted and registered as Criminal Appeal No.548/2011 on 9.5.2011. 2. Heard the learned counsel for the parties and perused the order impugned as also the record of trial Court. 3. Briefly stated facts of the case are that the appellant (complainant) filed two complaints for offence under Section 138 of the Act against the respondent Nos. 1 to 3 alleging therein that respondent No.1, a Private Limited Company managed by respondent Nos. 2 & 3 and engaged in the business of construction work, entered into a contract with Public Works Department for construction of road from Mandryal to Randhoi in District Karauli, but some differences arose between P.W.D. and the respondents, which as per their agreement, were referred to the Sole Arbitrator. The appellant, who had the experience of dealing with such matters of Arbitration since 1955, was contacted by respondent No.2 for obtaining his consultancy services. Remuneration of Rs.2 lac was fixed for his services. The appellant provided his consultancy services to the arbitration proceedings by drafting and filing the pleadings as also the documents and arguing the matter, as a result whereof, an award of Rs.39,19,665/- was passed on 4.10.2001 in favour of respondents. Respondent No.2 issued two cheques - No.0374082 dated 11.4.2002 for Rs.1.5 lac and No.0374083 dated 15.4.2002 for Rs. 50,000/- respectively, towards his remuneration for the services rendered. The two cheques from Vijaya Bank, Ahinsa Circle Branch, Account No.2077, were issued in the name of his Sole Proprietorship concern, named M/s. Rajasthan Roller Suppliers, Delhi and in his personal name as S.K.. Damani. The appellant presented the two cheques to his banker - Bank of Rajasthan for collection, which were returned with the remark that the account had been closed on 11.5.1998. Damani. The appellant presented the two cheques to his banker - Bank of Rajasthan for collection, which were returned with the remark that the account had been closed on 11.5.1998. The appellant contacted respondent No.2, who assured that the Account was not closed but it became non-operational because of there being no transaction for a long time and that it will be made operational by making deposit therein the requested the appellant to present the cheques after sometime. 4. Accordingly, the appellant presented the cheques after sometime, but of no avail. Hence he filed the two complaints before the trial Court. 5. Learned trial Court, after summoning the opposite party, read over the accusation to which they pleaded not guilty and claimed trial. In order to substantiate his case, the appellant examined himself and closed his evidence and exhibited certain documents. Learned trial Court had consolidated both his complaints vide order dated 15.1.2007. 6. After the statements of respondents were recorded under Section 313 of the code, they desired to produce defence evidence and after taking four adjournments, respondent No.2 filed an application under Section 315 of the Code seeking permission to examine himself as defence witness. Allowing his application under Section 315 of the Code, respondent No.2 was examined as DW.1 but due to paucity of time with the Court, the examination-in-chief remained incomplete. The matter remained pending at the stage of completion of his examination-in-chief from 9.5.2007 to 15.5.2009 i.e. for about 25 hearings, but more-or-less on every date of hearing, application seeking exemption of his appearance was filed and his examination-in-chief remained incomplete for almost two years. Out of thirty dates after 9.5.2007, on 25 dates respondent No.2, whose statement as DW.1 was deferred, did not appear and on 5 dates i.e. 16.5.2009, 25.5.2009, 9.6.2009, 20.6.2009 and 3.7.2009 the appellant did not appear. On 2.8.2009, when the matter was listed for completion of examination-in-chief of DW.1, the appellant as also his counsel did not appear and his complaints were dismissed in default as also for non-prosecution and the respondents were acquitted of the offence. It is this order of dismissal of appellant's complaints in default as also for non-prosecution and of acquittal of the respondents, which has been assailed by way of this criminal appeal. 7. It is this order of dismissal of appellant's complaints in default as also for non-prosecution and of acquittal of the respondents, which has been assailed by way of this criminal appeal. 7. During the course of arguments, learned counsel for the appellant submitted that on the day when the complaints were dismissed in default, there was no necessity of appearance of the appellant and that as per Section 256 of the code, if the personal attendance of complainant is not necessary on the date of hearing, the Magistrate has power to dispense with his attendance and proceed with the case and he should not have dismissed the complaints because the case was at the stage of examination-in-chief of DW.1 and not for his cross-examination, therefore, appellant's presence was not for his cross-examination, therefore, appellant's presence was not required. According to the learned counsel for the appellant, it was the duty of the Magistrate to see whether the personal attendance of complainant was necessary on that date or not, but learned trial Court did not consider this aspect, therefore, the order impugned has been passed without application of mind in a routine and casual manner. 8. Learned counsel for the appellant further contended that the appellant, who is a senior citizen of 76 years, was not keeping well and being under the impression that the courts remain closed during summer, went to his home-town Bikaner for taking complete rest, hence was not available in Jaipur during that time. Further that, within a span of a month and a half, 5 dates i.e. 16.5.2009, 25.5.2009, 9.6.2009, 20.6.2009 and 3.7.2009 were fixed and on 3.8.2009 dismissing his case in default, the accused were acquitted. The appellant, according to him, could not appear on account of his illness and also on account of the impression that the courts remain closed during summer. On his return from Bikaner in July 2009, when he went to the Court and inquired from the Reader about the next date in the matter, he was informed that it was 3.9.2009, but when he incidentally met the counsel for accused on 10.8.2009, he came to know that his complaints were dismissed in default on 3.8.2009, where-after he applied for certified copy of the order and after receiving it on 21.8.2009, he filed the present appeal. 9. His further case that his Advocate Mr. 9. His further case that his Advocate Mr. Pratap Singh Arya, also did not appear on his behalf and after return from Bikaner when he asked his counsel, he was told that on account of matrimonial alliance between a close relative of respondent No.2, Mr. Jhanjharia and him, he had informed the appellant about withdrawal of his brief by sending a letter, which he never received. 10. Placing reliance on the principles of law laid down by Hon'ble Apex Court in the case of Associated Cement Co. Ltd. vs. Keshvanand, AIR 1998 SC 596 ; the judgment of this court in the matter of Johrilal vs. Ramjilal & Others, AIR 1956 Rajasthan 19 (V 52 C 8); and the judgment of Madras High Court in the matter of Travel Agents Association of India (TAAI), Chennai vs. Eastman Travel & Tours (M) Pvt. Ltd. & Another, 2004 Cri.L.J. 2766, it was submitted that since the presence of complainant was not necessary on that day, the learned trial Court was not justified in dismissing the complaints in default because the examination-in-chief of DW.1 could have been completed. 11. On the other hand, learned counsel for respondents, drawing my attention to the provisions of section 256 of the Code, argued that the provision of Section 256 is mandatory and in case of non-appearance of the complainant the learned trial Court had no other option but to dismiss the complaints and acquit the accused persons. According to him, the word "shall" used in Section 256(1) of the Code, clearly shows that the provisions is mandatory and not directory and that the learned trial Court has not committed any error in passing the order impugned. 12. I have considered the rival contentions of the parties and perused the impugned order as also the record. 13. The dates of events available on record are that the two cheques for Rs. 1,50,000/- and Rs.50,000/- were issued on 11.4.2002 and 15.4.2002, which on presentation were dis-honoured on 15.4.2002 and 6.8.2002 respectively and two complaints were filed by the appellant on 10.9.2002, which were consolidated on 15.1.2007 and the appellant completed his evidence on 16.1.2007. The respondents (accused) were examined under Section 313 of the Code on 30.1.2007 and expressed desire to produce evidence. The respondents (accused) were examined under Section 313 of the Code on 30.1.2007 and expressed desire to produce evidence. On allowing of their application under Section 315 of the Code, the accused Dinesh Kumar Choudhary (respondent no.2) was examined as DW.l on 9.5.2007 but his examination-in-chief remained incomplete because of paucity of time of the court. His examination-in-chief could not be completed, although 30 dates were fixed in the case between 5.9.2007 and 3.8.2009. The record further shows that the personal attendance of accused persons was exempted on 24 dates during the said period in 2007, 2008 and 2009 being 4.6.2007, 11.6.2007, 28.6.2007, 27.7.2007, 4.8.2007, 15.9.2007, 15.10.2007, 29.10.2007, 16.11.2007 & 17.12.2007; 22.1.2008, 22.2.2008, 13.3.2008, 25.3.2008, 3.7.2008, 29.7.2008, 11.9.2008, 10.11.2008 & 10.12.2008; and 6.2.2009, 20.3.2009, 16,5,2009, 20.6.2009 and 30.7.2009, when DW.l (respondent no.2) Dinesh Kumar Choudhary, whose examination-in-chief was incomplete, had been exempted from personal appearance on all these 24 dates. During this period, the complainant and accused Dinesh Kumar Choudhary were present on 5 dates but the case was adjourned and these dates are 13.8.2008, 13.10.2008, 16.1.2009, 15.4.2009 and 25.5.2009. 14. Both the complaints consolidated, were fixed for completion of examination-in-chief but unfortunately the complainant could not appear due to bona fide belief that courts-remain closed in summer and on account of leaving for his home-town Bikaner for rest, as he is stated to be a senior citizen of 76 years of age and not well those days. It was on 3.8.2009 that the learned trial court, mentioning about the absence of the complainant on last four dates, dismissed his complaints in default and also for non-prosecution, and acquitted the accused persons. It was on 3.8.2009 that the learned trial court, mentioning about the absence of the complainant on last four dates, dismissed his complaints in default and also for non-prosecution, and acquitted the accused persons. The relevant portion of the order impugned reads as under:- ^^ifjoknh i{k dh vksj ls dksbZ mifLFkr ughaA fiNyh pkj rkjh[k isf'k;ksa ls ifjoknh dh vksj ls dksbZ mifLFkr ugha vk jgk gSA vkt Hkh ckj ckj vkokts yxokbZ xbZ] ifjoknh dh vksj ls dksbZ mifLFkr ugha gSA vfHk;qäx.k fnus'k dqekj pkS/kjh o foeyk nsoh e; vf/koäk mifLFkr gSA le; 3-40 ih,e gks pqdk gSA vne gktjh vne iSjoh ifjoknh esa ifjoknh dk ifjokn [kkfjt fd;k tkrk gSA vfHk;qäx.k dh mifLFkfr ckcr~ izLrqr tekur eqpyds fujLr fd;s tkrs gSA vfHk;qäx.k dks vkjksfir vijk/k vUrxZr /kkjk 138 ,u vkbZ ,DV ls nks"keqä fd;k tkrk gSA i=koyh QSly 'kqekj gksdj nkf[ky nrj gksA** Before proceeding further, it will be worthwhile to look into the provisions under Section 256 of the Code, which 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 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-sec. (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death." Reading of the Section in its entirety reveals 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. 15. 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. 15. Hon'ble Apex Court in Associated Cement Co. Ltd. (supra) held in para 18 as under:- "18........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, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." In the matter of Travel Agents Association of India (supra), while 10 dealing with a case of dis-honour of cheque where complainant completed his evidence and accused did not want to examine any witness and where the matter was fixed for arguments, the dismissal of case on account of non-appearance of complainant was held as not proper by the learned Single Bench of Madras High Court. It was held that court should have passed order on the basis of evidence available on record. In that case also, the complainant was not present for four consecutive hearings and neither the complainant nor his counsel was present and ultimately the court, because of non- appearance of the complainant, acquitted the accused under Section 256(1) of the Code. It was held that court should have passed order on the basis of evidence available on record. In that case also, the complainant was not present for four consecutive hearings and neither the complainant nor his counsel was present and ultimately the court, because of non- appearance of the complainant, acquitted the accused under Section 256(1) of the Code. The Single Bench of Madras High Court held that the order of trial court, dismissing the complaint on the ground of non-appearance and acquitting the respondents, was not legally sustainable because in that case also it was found that the complainant had already completed his evidence and defence did not lead any, and the Magistrate was duty bound to pass judgment based on the evidence and, therefore, the presence of the complainant was unnecessary on the day when the learned trial court acquitted the accused on account of non-appearance of the complainant. 16. In the same manner, Co-ordinate Bench of this court in Johrilal vs. Ramjilal (supra), also held that the power of court under Section 256 of the Code should be judicially exercised. If the appearance of complainant is not necessary or material on that particular day, the case should not be dismissed. Dealing with the provision of Section 247 of the Code (old Cr.P.C.) equivalent of Sec. 256 of the Code, it was held by this court that Section 247 is not intended to serve as a short-cut for the trial courts to dismiss cases by snap judgments. The power to dismiss the case is, undoubtedly there, when the complainant in a case instituted on a complaint is absent in a summons case, but that power must be judicially exercised. In Johrilal vs. Ramjilal (supra) also, it was held that in this class of cases, whenever a complainant is absent the Legislature has cast a duty on the Magistrate to consider and apply his mind to the question, whether the personal attendance of the complainant is or is not necessary before he proceeds to acquit the accused under Section 247 (256 of the Code). If it is, and the complainant is absent, the court must acquit the accused, but where the court may legitimately come to the conclusion that the personal attendance of the complainant is not necessary on that particular date, he should dispense with the complainant's attendance and proceed with the case or adjourn it as the case may be. 17. In view of the principle of law laid down by the Apex Court and also by other High Courts, it becomes clear that in such a situation, the discretion has to be exercised judicially and fairly. In this case, the examination-in-chief remained incomplete on 9.5.2007 on account of paucity of time of the court, but thereafter DW.2 did not appear on 24 dates continuously as mentioned above and his exemption was allowed. Respondent No.2, as also the complainant, were present on 5 dates out of 30 dates given in this case, but the matter was adjourned and on the days when the complainant did not appear, his presence was not necessary because the examination-in-chief of DW.l was yet to be completed. It was not the case which was fixed for cross examination of DW.l. Had this been the situation, it would have been justified for the Magistrate to acquit the accused, but in this case the learned Magistrate could easily record the examination-in-chief for which presence of complainant was not necessary. Moreover, in the case in hand, the appellant has clearly mentioned that under the impression of summer vacations of courts and he being an old man of 76, went to his home-town for complete rest at Bikaner and in his absence his counsel Mr. Arya also did not appear because he claimed to have sent him a letter informing that some matrimonial alliance with the relative (Mr. Jhanjhariya) of respondent no.2 had taken place and, therefore, he might not continue to contest his case but this letter never reached him. He has enclosed a certificate which shows that he had sought adjournment in the arbitration proceedings also for 2/4 months during those days, as he was not keeping good health. The order-sheets of the learned trial court show that the appellant has been pursuing his complaints by his personal appearance on each and every day of 30 dates. He has enclosed a certificate which shows that he had sought adjournment in the arbitration proceedings also for 2/4 months during those days, as he was not keeping good health. The order-sheets of the learned trial court show that the appellant has been pursuing his complaints by his personal appearance on each and every day of 30 dates. How could it have been possible for him to be negligent to appear on the last four dates, which all fell within a span of approximately of 1½ months. These facts have been mentioned in the memo of appeal and that in the given circumstances, his presence was not necessary for completing the examination-in-chief of DW.l and, therefore, learned Magistrate has committed an error in dismissing the complaint and acquitting the accused on that day. 18. In the background of above principles of law laid down by the Apex Court, I am of the considered view that presence of complainant on that day was not necessary and resorting to the step of axing down the complaint as a short-cut, cannot be said to be a proper exercise of power envisaged in the section. The learned Magistrate has not exercised his discretion judicially and fairly to ensure that the cause of administration of criminal justice is not impaired. 19. For the foregoing reasons the order impugned passed by the learned Magistrate is not sustainable in the eye of law, hence the appellant's appeal is allowed but with no order as to costs. The order impugned is set aside and the matter is remanded to the learned trial court for completing the statements of DW.l and any other witness to be examined by the accused and the trial court should dispose of the matter in accordance with law. The parties are directed to appear before the learned trial court on 7.5.2012. Appeal stands disposed as indicated above.