Hon’blr Nirmaljit Kaur, J. : The prayer in the present petition is for setting aside the Order dated 13.03.2009 passed by the Judicial Magistrate, Ist Class, Jagadhari, whereby, the complaint filed by the petitioner was dismissed in default and Order dated 02.07.2009 passed by the Additional Sessions Judge, Yamuna Nagar, whereby, the revision filed by the petitioner was dismissed. While praying for setting aside the said Order, learned counsel for the petitioner submitted that the Judicial Magistrate Ist Class, Jagadhari after recording the evidence of the petitioner vide Order dated 23.11.2007 summoned the respondent to face trial under Section 138 of the Negotiable Instruments Act. As the respondent failed to appear despite summoning, therefore, his warrants of arrest was issued by the Court of Judicial Magistrate, Ist Class, Jagadhari. When the case came up for hearing on 13.03.2009, the Judicial Magistrate Ist Class, dismissed the complaint filed by the petitioner in default. The Additional District Judge, Yamuna Nagar vide Order dated 02.07.2009 dismissed the revision filed by the petitioner against the Order dated 13.03.2009 passed by the Judicial Magistrate Ist Class, Jagadhari on the ground that the revision petition is not maintainable. 2. Notice of motion was issued. No one has come present on behalf of respondent No.2, despite service. Thus, the present petition has not been contested. 3.This Court in the case of Purushotam Mantri vs. Vinod Tandon alias Hari Nath Tandon reported as 2009(1) RCR (Criminal) 442 while relying on the judgment in case of Jitender Bajaj v. State (U.T Chandigarh) and others reported as 2005(3) RCR(Crl.) 69, held as under :- “..............When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complainant on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same.” 4. Thus, there is no dispute that the impugned Order dated 13.03.2009 passed by the Judicial Magistrate, Ist Class, Jagadhari, vide which, the complaint filed by the petitioner was dismissed in default, can be set aside in the proceedings under Section 482 of the Cr.P.C. Section 256 of the Cr.P.C 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-sectin (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” 5. It is evident from the perusal of the same that the Magistrate may dispense with the attendance of the complainant, in case, he comes to the conclusion that it was not necessary for the complainant to appear on that date and proceed with the case in accordance with law. Hon’ble the Supreme Court in the case of The Associated Cement Co. Ltd. vs. Keshvanand reported as 1998(1) RCR (Criminal) 309 (SC) with reference to the aforesaid provisions of Section 256 of the Cr.P.C., observed in para 16 as follows :- “16. Hon’ble the Supreme Court in the case of The Associated Cement Co. Ltd. vs. Keshvanand reported as 1998(1) RCR (Criminal) 309 (SC) with reference to the aforesaid provisions of Section 256 of the Cr.P.C., observed in para 16 as follows :- “16. 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. 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 there be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 6. In similar circumstances, this Court in the case of Dilawar Singh vs. Pankaj Joshi and another reported as 2007(2) RCR (Criminal) 398 held thus; “The trial Court, therefore, was clearly in error in resorting to the extreme step of dismissal of the complaint especially in view of the fact that the matter was pending primarily to secure the presence of the respondent and proceedings under Section 82 of the Cr.P.C were contemplated against him. As such, in the given facts and circumstances of the case, it was incumbent upon the trial Court to have explored the possibility of either adjourning the hearing of the case to some other date or to have concluded whether the presence of the complainant was necessary so as to take such a serious view of his absence which resulted in the passing of the impugned order vide which the life of the complaint was extinguished.” 7. In the present case also, the case was fixed for the presence of the respondent. As such, it was necessary for the Magistrate to examine as to whether the presence of the complainant-petitioner was necessary or not and thereafter only to proceed to pass the Order dismissing the petition in default. In the present case, the case was only fixed for the appearance of the accused respondent and, therefore, the presence of the petitioner was not necessary. 8. In view of the above, the present petition is allowed and the Order dated 13.03.2009 passed by the Judicial Magistrate, Ist Class, Jagadhari, whereby, the complaint filed by the petitioner was dismissed in default and Order dated 02.07.2009 passed by the Additional Sessions Judge, Yamuna Nagar, whereby, the revision filed by the petitioner was dismissed, is, hereby, set aside.