JUDGMENT - TAHILRAMANI V.K. (Smt.), J.:---Heard the learned Advocate for the applicant and the learned A.P.P. for the State. Rule. By consent rule is made returnable worthwith.

2.The respondent No. 1 (original complainant) had filed a complaint against the present applicant under section 138 of Negotiable Instruments Act. The said complaint was filed in the Court of J.M.F.C., Court No. 4, Pune and the said complaint was numbered as 1482/2000.

3.On 13-1-2003 as the complainant remained absent, due to absence of the complainant, the learned J.M.F.C. Court No. 4, Pune dismissed the complaint under section 256 of Cri.P.C. and acquitted the accused (applicant). Being aggrieved by the dismissal of the complaint, the complainant preferred Criminal Revision Application No. 151/2003 before the Additional Sessions Judge, Pune. By order dated 29-5-2003, the learned Additional Sessions Judge, Pune allowed the revision application and restored the complaint back to the file of the learned J.M.F.C. Being aggrieved by the said order of the learned Sessions Judge, the applicant i.e. the original accused has preferred the present criminal application. I have perused the order of the learned Additional Sessions Judge, and find no infirmity therein so as to warrant interference.

4.In the present case the Magistrate had issued process against the accused under section 138 of Negotiable Instruments Act. The applicant (accused) had appeared in response to the summons. Thereafter the matter was posted for recording of plea of the accused. On the date of recording of plea of the accused, the complainant was absent and hence the learned Magistrate dismissed the complaint. On behalf of the applicant, it is submitted that the complainant must remain present on each and every date of hearing and if the complainant cannot remain present, then he is expected to file exemption application before the Court. However, in the present case, no such exemption application was moved before the learned Magistrate and therefore, it is submitted that the learned Magistrate was justified in dismissing the complaint.

5.In order to appreciate the controversy involved in this matter, it is necessary to reproduce the provisions of section 256 of Cri.P.C., which is 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-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

A brief perusal of the above section would indicate that the section, is mandatory in nature and if the complainant does not appear on the date of hearing the Magistrate shall acquit the accused. However, the latter part of the section clearly indicates that the Magistrate has another option i.e. to adjourn the hearing of the case to some other date. The third option which is available to the Magistrate under this section is that, the Magistrate may proceed with the case if in the opinion of the Magistrate, the personal appearance of the complainant is not necessary.

6.On perusal of the order passed by the learned Magistrate, I find that the learned Magistrate has nowhere stated in the order as to why the personal attendance of the complainant was necessary when on the said date the case was admittedly posted for recording the plea of the accused. T

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