JUDGMENT : Sanjay Kumar Gupta, J. Through the medium of present petition, petitioner seeks quashing of order dated 17.04.2017, passed by learned Special Excise Magistrate, Jammu in File No. 07/Comp., titled Palvi v. Munib Kumar, by virtue of which the complaint under Section 138 Negotiable Instrument Act has been dismissed for non-prosecution. 2. It is stated in the petition that the petitioner is partner of a firm namely Nirmala Enterprises. The respondent, who claims to be the project coordinator of Kaushal Vikas Pehal (KVP) a project under National Skill Development Mission (NSDM) stated to be engaged for promotion of education and skill development. The respondent in order to spread his area of operation of the above said development signed a Memo of understanding with the firm of the petitioner in which the petitioner is one of the partners. The respondent very cleverly with criminal bent of mind induced the petitioner and resultantly obtained huge amount of money through petitioner. The petitioner who was also appointed as Coordinator for the State of J&K made to part huge amount of money and deposited in the account of the Respondent. The respondent in order to discharge his some of the financial liabilities accruing towards the Petitioner issued a cheque bearing No. 245898, dated 08.07.2015 amount to Rs. 3,50,000/- drawn from the Punjab National Bank at its branch Station road, Ballia (UP). That the petitioner presented the aforesaid cheque for encashment to her banker i.e. Punjab National Bank at its Branch Durga Nagar, Jammu, but the same was returned vide Memo dated 10.07.2015 with the remarks of Reference to Drawer. That the Petitioner thereafter issued a demand notice through her counsel namely Mohd. Shaban, Advocate vide No. MS/LN/20/15, dated 22.09.2015 which was sent through registered post at both the addresses of the Respondent i.e. at his residential address in UP as well as his official address in New Delhi. That through legal notice aforesaid a specific demand for making payment of Rs. 3,50,000/- within a period of 15 days was made, however, even after the lapse of the stipulated period specified in the legal notice, the payment as mentioned therein has not been made in favour of the Petitioner. That through legal notice aforesaid a specific demand for making payment of Rs. 3,50,000/- within a period of 15 days was made, however, even after the lapse of the stipulated period specified in the legal notice, the payment as mentioned therein has not been made in favour of the Petitioner. That constrained with the circumstances the petitioner left with no other alternate but to file a complaint under Section 138 NI Act before the learned Chief Judicial Magistrate, Jammu, which came to be transferred before the Court of learned Special Excise Magistrate, Jammu. The learned Magistrate vide order dated 04.11.2015 took cognizance and issued process against the respondent. Various summons were issued to be served upon the respondents but service could not be effected due to one reason or other. That the petitioner has taken every step whatever were required to be taken by her, in as much, the summons were sent through Registered Post as well as through Courier but were not received back served or un-served. As a matter of fact the respondent deliberately avoided the service on one pretext or the other. There was confusion of fixing dates before the learned trial Court, in as much as the petitioner was given the date of 7th April, 2017, on which date the petitioner appeared before the learned Court and was told by the concerned clerk that next date has been fixed for 3rd of May, as such, she attended the Court on 3rd of May, when she came to know that her complaint has already been dismissed vide order dated 17.04.2017. The aforesaid fact can be confirmed from the daily PESHI register of the learned Trial court. That on coming to know about the dismissal of her complaint on 3rd of May, the petitioner moved an application on 4th of May and got the certified copy of the order dated 17.04.2017. The aforesaid fact can be confirmed from the daily PESHI register of the learned Trial court. That on coming to know about the dismissal of her complaint on 3rd of May, the petitioner moved an application on 4th of May and got the certified copy of the order dated 17.04.2017. That the petitioner is aggrieved of order dated 17.04.2017 passed by learned Special Excise Magistrate, Jammu in File No. 07/Comp, DOI 23.10.2015, titled Palvi v. Munib Kumar by virtue of which the complaint under Section 138 Negotiable Instrument Act has been dismissed for non prosecution and seeks to challenge amongst other on the following grounds:- (a) The order impugned is not sustainable in as much as the Petitioner was not aware with respect to the fixing of date on 17.04.2017, rather she was told on 07.04.2017 to come on 3rd of May, on which date the petitioner came to know that her complaint has since been dismissed. The absence of Petitioner on 17.04.2017 was neither intentional nor deliberate but due to the reasons as mentioned above. (b) That once the complaint has been dismissed in default, the Magistrate becomes functus officio and he has no power to restore the complaint. Since the Petitioner has been condemned unheard, as such, ends of justice that the complaint is restored and disposed of on its merit. (c) That the Petitioners crave the leave of this Hon'ble Court to urge any other additional or alternate ground in support of petition at the time of final arguments. 3. Since no one has put in appearance on behalf of both sides, I have myself considered all aspects of the matter and law on the subject . 4. The dismissal of the complaint by the trial court for non-appearance of the petitioner is justified. At this juncture, it is relevant to reproduce section 247 of Cr.P.C. “247. Non-appearance of complainant.- (1) If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto 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 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 conducted the prosecution or where the Magistrate is of the opinion that personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case; and (2). The provision of sub-Section (1) shall so far as may be, apply also to cases where non-appearance of complainant is due to his death.]” 5. On perusal of the aforesaid provisions of Cr.P.C., it is manifestly clear that the Magistrate has discretionary powers to acquit the accused in the absence of the complainant unless he thinks it fit to adjourn the hearing for another day. This affords some deterrence against dilatory tactics on the part of the complainant. This section affords protection to an accused against such dilatory tactics of the complainant. But it does not mean that if the complainant is absent, the Court is bound to acquit the accused in that eventuality. If the Court considers that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. If the Magistrate considers that personal appearance of the complainant was required on that day, the Magistrate has power to dispense with his attendance and proceed with the case. 6. It is for the Court to consider whether the presence of the complainant is necessary for the progress of the case on the day when the complainant is absent or the situation is such that the case be adjourned to another date. If the situation mandates that there is no reason to adjourn the case, the Magistrate is empowered to dismiss the complaint and acquit the accused. 7. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case was fixed for presence of accused. The presence of accused was not so much necessary. 8. In the present case, complaint was moved before CJM Jammu on 23.10.2015; it was transferred to the Court of Excise Magistrate (JMIC ) Jammu who took cognizance on 4.11.2015; it is worth while to mention here that respondent is resident of outside State of J&K that of U.P. Process was issued against him and he was yet not been served till the complaint was dismissed due to non prosecution. Complainant did not appear for three dates, so on 17.4.2017, the complaint was dismissed due to non prosecution and respondent/accused was acquitted. 9. Complainant/petitioner has filed the complaint qua dishonor of cheque in the sum of Rs. 3,50,000/-. Complainant had nothing to gain by not appearing before the Court on the date fixed. In these circumstances, the absence of the complainant before the Trial Court on 17.4.2017 cannot be said to be deliberate or intentional. The court has to take cognizance of offence and not of accused. Complainant is female and accused/respondent has fraudulently and dishonestly cheated her with huge amount. Petitioner has given sufficient cause for her absence in para 7 and 8 of this petition. Further the proceeding of complaint would reveal that notice has been sent to SSP Jammu, whereas accused is resident of UP. There is separate procedure for service of person in Cr.P.C, who is resident of outside State, which JMIC would have sufficient knowledge. 10. Taking into account the aforesaid facts and circumstances of the case, this Court is of the opinion that it is a fit case, where order impugned is required to set aside in the interest of justice. It is set aside accordingly. 11. File of court below be sent back along with this order. Trial court shall proceed with the matter as per law. However, petitioner shall take all steps in getting the process executed against accused. In case of fail, trial Court shall proceed with the complaint as per law.