1. Heard learned counsel for appellant and learned Additional Public Prosecutor for respondent no.2. None appears for respondent no.1 though served. Admit. R & P dispensed with and appeal is taken up for final disposal by consent of parties.

2. It is the grievance of appellant that he or his Advocate was unable to attend the Court when the complaint was called out and the complaint was dismissed under Section 256 Cr.P.C. It is submitted that complainant and his lawyer attended the Court shortly thereafter and prayed for restoration of complaint, but the learned Magistrate rejected the plea on the ground that there is no provision to main such application for restoration.

3. It is laid down by this Court in India Fintrade v. Cherry Fashions and ors reported in 2009 All MR (Cri) 1657 that power under Section 256 Cr.P.C. cannot be exercised only on account of absence of complainant, but the Magistrate has to exercise discretion after considering the conduct of the complainant. There is no conduct borne out from record revealing indifferent attitude of complainant or his apathy to the proceedings. In the interest of justice, therefore, impugned order will have to be set aside.

4. Impugned order dated 16.6.2009 is hereby quashed and set aside. Special Criminal Case No. 74 of 2007 is restored to the file of concerned Judicial Magistrate, First Class, Amravati. Learned Magistrate shall proceed with the complaint in accordance with law after issuing fresh notice to the accused. Complainant is directed to appear before the trial Court on 8th February 2010. Appeal stands disposed of accordingly.