JUDGMENT :- Heard Mr. P. P. Kothari, learned Advocate for the Appellant, Mr. S.G. Karmarkar, learned Advocate for the Respondent No. 1 and Mr. A. M. Deshpande, learned APP for the Respondent No.2. 2. With the consent of learned Counsel for the parties, taken up for final hearing and heard finally. R&P is dispensed with. 3. The appellant has challenged the validity and legality of the impugned order dated 11/08/2011, whereby the 27th Judicial Magistrate First Class, Nagpur was pleased to acquit the accused after recording that the complainant and his counsel were absent since last three dates continuously. Learned JMFC also recorded that the case is of the year 2006 and accused is giving his presence since 2009 and the case is fixed for particulars. The case is pending since long without any progress and, therefore, the learned 27th Judicial Magistrate First Class, Nagpur chose to acquit the accused canceling his bail bonds and disposed of the case. 4. Learned Advocate for the appellant-complainant submitted that the complainant is a Body incorporated under Section 3 of the Bureau of Indian Standards Act, 1986 for harmonious development of the activities of standardization, marketing and for certification of goods. He further submitted that the complainant had filed complaint for the offence punishable under Sections 11 and 12 read with Section 33 of the Bureau of Indian Standards Act, 1986, against the respondent No. 1 on the ground that he was misusing the B.I.S. standard mark and there was no batch number mentioned on the product which he was selling. 5. It is grievance of the appellant that the complaint case filed by him was registered as Summary Criminal Case No. 4989 of 2006 on 08/03/2006, and learned trial Court issued summons to the accused, which could not be served upon the accused but, the accused appeared in the trial Court and was released on cash security of Rs. 5,000/-. The case was, thereafter, fixed on 08/04/2010 for recording the particulars and the particulars could not be recorded till 11/08/2011. The learned trial Court, on 11/08/2011, dismissed the complaint holding that the complainant and his counsel are absent since last three consecutive dates. It is further grievance of the appellant that the particulars could have been recorded even in the absence of complainant and his counsel. The learned trial Court, on 11/08/2011, dismissed the complaint holding that the complainant and his counsel are absent since last three consecutive dates. It is further grievance of the appellant that the particulars could have been recorded even in the absence of complainant and his counsel. He has also submitted that the case was transferred from one Court to another Court vide order dated 10/03/2011, and since then there is no notice to any of the parties as regards transfer of the case. Considering the misuse of B.I.S. standard mark by respondent No.1, the learned trial Magistrate ought to have alerted the complainant to attend the Court instead of acquitting the accused on the date when the case was fixed for explaining the accusations to the accused. It is, therefore, submitted that the drastic order of acquittal and cancellation of bail bonds entered into by the accused was unjust and improper. Learned Advocate for the appellant placed reliance on the rulings in the cases of Damodhar s/o. Murlidhar Bajaj Vs. Ratan s/o. Suryabhan Shinde reported in 2012 ALL MR (Cri) 785 as also The Aurangabad People's Cooperative Bank Ltd. Vs. Ramdas Maruti Kurade reported in 2012 ALL MR (Cri) 817 in order to submit that instead of resorting to technicality on the ground of absence of complainant and his counsel, learned trial Magistrate ought to have, in the interest of justice, granted an opportunity to the complainant to adduce evidence so as to decide the case on merits. 6. Learned Advocate for the respondent No. I-accused made reference to Section 249 of the Code of Criminal Procedure regarding discharge of the accused and contended that when the complainant was absent, the Magistrate had discretion to discharge the accused. While according to learned Advocate for the appellant, considering the appropriate provisions under Section 256 of the Code of Criminal Procedure, the learned trial Court by the impugned order dated 11/08/2011, acquitted the accused and not discharged. Under Section 256 of the Code of Criminal Procedure, decision is left to the trial Magistrate to ensure that prosecution is conducted by an appropriate person. 7. Under Section 256 of the Code of Criminal Procedure, decision is left to the trial Magistrate to ensure that prosecution is conducted by an appropriate person. 7. Considering the nature of the case regarding dismissal of the complaint as alleged, power to acquit the accused ought not to have been exercised merely on account of absence of the complainant, particularly when no notice was issued to the complainant regarding transfer of criminal case from the Court of Chief Judicial Magistrate to 27th Judicial Magistrate First Class, Nagpur, and the accused also was not given such a notice. Under the circumstances and looking to the provisions contained under Section 256 of the Code of Criminal Procedure, I think it may be practicable that at such a stage, when only particulars are to be explained to the accused, the trial Magistrate may consider the presence of the complainant quite unnecessary. Presence of the complainant or his witnesses need not have been insisted upon at that stage as compulsory to entail dismissal of the complaint. Since dismissal of the complaint was on the ground of sheer technicality, I think the rulings cited are attracted and complainant deserves an opportunity of I hearing and to adduce evidence on merits. Hence the following order is passed. ORDER (i) The appeal is allowed. (ii) The impugned order dated 11/08/2011 stands quashed and set aside and the matter is remitted back to the Trial Court. (iii) The parties are directed to' remain present before the Trial Court on 16th' April, 2012. (iv) Trial Court to hear the parties on merits subject to payment of costs of Rs. 2,000/- (Rupees Two Thousand Only) by the appellant (original complainant) to the respondent (original accused) as condition precedent, and then decide it according to law. (v) The appeal is disposed of accordingly. Ordered accordingly.