JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Ms. P. Gupta, learned counsel appearing on behalf of Mr. C.S. Ray, learned counsel for the appellant, Mr. S.P. Roy, learned counsel for the respondent No. 1 and Mr. K.K. Parasar, learned Additional Public Prosecutor, Assam, appearing for the State respondent No. 2.

2. In this appeal, under Section 374(4) of the Code of Criminal Procedure, 1973, the appellant has put to challenge the order, dated 27.07.2010, passed by the learned Judicial Magistrate First Class, Kamrup(M), Guwahati, in complaint case, being C.R. No. 1882C/2007. It is to be noted here that vide impugned order, dated 27.07.2010, the learned Court below has dismissed the complaint for default and acquitted the accused/respondent No. 1.

3. The background facts, leading to filing of the present criminal appeal, are briefly stated as under:

“The appellant, namely, M/s. Gupta Hardware Private Limited represented by Manab Lahkar, its Marketing Manager, through a registered Power of Attorney Deed, has instituted a complaint case, being C.R. No. 1882C/2007, under Section 138 of the N.I. Act before the learned Judicial Magistrate First Class, Kamrup(M). In the aforesaid complaint, the learned Court below has taken cognizance of the offence under Section 138 of the N.I. Act and issued process to the accused/respondent No. 1 and pursuant to the said process, the respondent No. 1 entered appearance before the learned Court below on 17.10.2007 and then the learned Court below has explained the particulars of offence under Section 138 of the N.I. Act to the respondent No. 1, to which the respondent No. 1 pleaded not guilty and claimed to be tried. Thereafter, the learned Court below has fixed the case on 15.12.2007 for evidence. Thereafter, on different dates the case was adjourned, sometimes for necessary order, sometimes for appearance of the accused and sometimes for evidence. Thereafter, vide order dated 11.05.2010, the case was fixed for necessary order on 27.07.2010, as on that day the learned Presiding Officer of the Court below was on leave and both the parties were present on that day and on such count the case was fixed on 27.07.2010, for necessary order. Thereafter, on 27.07.2010, the appellant remained absent with step, vide Petition No. 2501 and the accused was also absent with step and was represented for that day. But, the Petition No. 2501 filed by the appellant was not pressed by its counsel for which the learned Court below observed that many dates were given to the complainant’s side, but, the complainant has failed to adduce any evidence till date and he was also absent with a petition showing a common reason of ailment without there being any medical paper and therefore, the learned Court below had rejected the petition and dismissed the complaint by exercising the power under Section 256 Cr.P.C. and acquitted the accused. On the same day, the learned counsel for the appellant had filed another petition, being Petition No. 4185, to restore the case to the file, but the learned Court below has dismissed the same, as there is no provision in the Cr.P.C. empowering the Magistrate to do so after the complaint is dismissed.”

Being aggrieved the appellant is before this Court.

4. Ms. Gupta, learned counsel for the appellant, has raised following issues for consideration of this Court:

(i) That, the learned Court below had fixed 27.07.2010, for necessary order, vide order dated 11.05.2010.

(ii) That, on 27.07.2010, the appellant could not appear before the Court, but his counsel filed one petition, being Petition No. 2501 and thereafter, informing the Bench Assistant, the learned counsel left for the CBI Court to attend some other matters.

(iii) That, after returning from the CBI Court, the learned counsel came to know about dismissal of the complaint and filed another petition, being Petition No. 4185, for restoration of the complaint, but, the learned Court below had dismissed the same for want of provision in Cr.P.C.

(iv) That, the le