Complainant has assailed the impugned order of dismissal of his complaint on account of his non-appearance on 15th June, 1993 passed under Section 256 of the Code of Criminal Procedure.

2. In order to appreciate the points involved for determination of this Court, it would be necessary to detail certain relevant facts.

3. Complainant had supplied goods to the accused. For consideration thereof, he had issued a cheque amounting to Rs. 8,500/- on 30th April, 1992 in the name of M/s. Vikas Rubber Industries, Mandi drawn on Himachal Gramin Bank, Nihri for full and final settlement thereof. The said cheque was bounced because of insufficiency of funds. Complainant issued a notice as, envisaged under Section 138 of the Negotiable Instruments Act, 1881, which remained unreplied. Ultimately, the abovesaid facts culminated into the filing of the present complaint.

4. The trial court after observing codal formalities with respect to inquiry as envisaged under Section 202 of the Code of Criminal Procedure directed the issuance of summons to the accused. On his appearance and after satisfying himself, the date was fixed for putting up the accusations under Section 251 of the Code of Criminal Procedure on 15th June, 1993. The complainant suffered ankle sprain on 12-6-1993. He was under treatment at District Civil Hospital, Mandi. The medical expert had advised him ten days rest. Accordingly, he could not appear on 15-6-1993 and instead submitted an application seeking adjournment through his brother. That application was accompanied with an out-door patient slip issued by the hospital authorities. Despite submission of the application, the same was rejected and the impugned order dismissing the complaint for non-appearance of the complainant was passed.

5. Feeling aggrieved with the said order, the appellant has come up in this appeal. The main contention raised by Shri Harish Behl, Advocate, learned counsel for the appellant is that the impugned order is contrary to the statutory requirement of Section 256 of the Code of Criminal Procedure. It is urged that the learned court below did not apply its mind to the facts and circumstances of the case necessitating the dismissal of the complaint. According to him, the trial court gravely erred in not passing the order by exercising its judicial discretion.

6. Section 256 of the Code of Criminal Procedure, 1974 (New Code) corresponds to Section 247 of Code of 1890 (old). The proviso to the Section has undergone changes in recent years inasmuch as its scope has been widened so as to empower a Magistrate to proceed with the case where the concerned Magistrate is of opinion that the personal attendance of the complainant is not necessary or where he is represented by his pleader or by the officer conducting the prosecution.

7. Keeping in view the nature of the criminal case filed by the appellant, there is no doubt that the procedure adopted in the trial of the summons case is to be adopted in the case in hand. Thus, this is a summons case instituted an complaint. Section 256 of the new Code reads as :- "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 of 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."

8. The close examination