Sanjay K. Agrawal, J.

1. Invoking the jurisdiction of this Court under Section 378(4) of the CrPC, the appellant/complainant has filed this acquittal appeal against the order dated 28.2.2014 passed by the 4th Additional Sessions Judge, Raipur, in unregistered criminal revision (Ganesh Shankar Diwan v. Ajay Sahu), by which the revision filed by the appellant has been dismissed.

2. The appellant/complainant filed a complaint before the jurisdictional Judicial Magistrate First Class, Raipur under Section 138 of the Negotiable Instruments Act, 1881. That complaint was registered and cognizance was taken, summons were issued to the respondent/accused and thereafter the complainant regularly appeared before the trial Court and adduced his evidence and case was fixed for accused statement, but on 26.12.2013 he could not appear either personally or through his counsel, therefore, the complaint was dismissed and the accused was acquitted. The appellant preferred revision before the 4th Additional Sessions Judge, Raipur. That was also dismissed. Against which, this acquittal appeal under Section 378(4) of the CrPC has been filed.

3. Mr. Rajkumar Gupta, learned counsel appearing for the appellant would submit that the appellant/complainant regularly appeared before the trial Court right from 24.6.2011 except on 26.12.2013 the date on which the complaint was dismissed either personally or through his counsel and on 26.12.2013 he was unwell, therefore, he could not appear before the trial Court and the complaint was dismissed and on 26.12.2013 his presence was not necessary as case was fixed for accused statement. Therefore, the order impugned be set aside and the matter be remanded back to the trial Court for hearing and disposal in accordance with law.

4. On the other hand, Mr. Amit Kumar Sahu, learned counsel appearing for the respondent, would support the impugned order.

5. I have heard learned counsel appearing for the parties and perused the order impugned with utmost circumspection.

6. In order to have proper comprehension of the attack made to the order dismissing the complaint, it would be profitable to notice Section 256(1) of the Code, which provides as under:-

Section 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 herein before 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 nonappearance of the complainant is due to his death."

7. From the careful and close perusal of Section 256 of the Code, it appears that in a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely:

(1) Acquit the accused;

(2) To adjourn the case; and

(3) To dispense with the attendance of the complainant and to proceed with the case.

8. In a decision reported in Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687, the Supreme Court has held that Section 256 of Code, imposes two constraints on the Court for exercising the power for dismissing the complaint and provides as under:-

17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accuse