JUDGEMENT DEV DARSHAN SUD, J 1. HEARD Learned counsel for the appellant places reliance on the decision of this Court in Boby Vs. Vineet Kumar, Latest H.L.J.2009 (HP) 723, the Court holds: "5. In N.K. Sharma versus M/s Accord Plantations Pvt. Ltd. and another [Latest HLJ 2008 (HP) 1249], this court was confronted with the similar proposition. However, following the judgment of the apex Court in Associated Cement Co. Limited versus Keshvanand [(1998)1 Supreme Court Cases 687], noticed that the section aforesaid imposes two constraints on the Court for the exercise of powers for dismissing the complaint; firstly, if the court thinks in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused and secondly, when the Magistrate considers that the personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. 6. Thus when the Court notices that the complainant is absent on a particular day, the court must consider whether the 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 powers, envisaged in the section. Therefore, the discretion in the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the court. 7. In the facts in hand, the learned trial Court has given a complete go bye to the essential requirements of Section 256 of the Code and did not record the reason whether the presence of complainant was essential for the progress of the case, which on facts was not; therefore, the impugned order is indefensible, thus unsustainable, thus, set-aside. Consequently, the complaint aforesaid is remanded back to the learned trial court for its disposal in accordance with law. It shall be entered against its original number. Consequently, the complaint aforesaid is remanded back to the learned trial court for its disposal in accordance with law. It shall be entered against its original number. Parties are directed to be present before the learned trial court on 23.4.2009. (P.726) 2. SUBMISSION made on behalf of learned counsel appearing for the respondents is that this judgment does not cover the controversy in hand. I cannot accept this submission. The order of the learned trial Court clearly shows that the case was called in the morning of 23.12.2011 and dismissed in the afternoon. Appeal is allowed. Parties to appear before the learned trial Court on 28th May, 2013.