#54 % 01.08.2011 Present: Mr.Dileep Poolakot, Advocate with Mr. Gaurav Nair, Advocate for the petitioner. Mr. Pawan Narang, APP for the respondent No.l/State. +Crl.M.A. 8911/2011 Exemption allowed, subject to all just exceptions. Application stands disposed of; CrLM.A. 8912/2011 (condonation of delay) Heard, in view of the reason given in the application, delay in filing the H petition is condoned. Application stands disposed of. CrI.Rev.P. 343/2011 & CrI.M.A. 8913/2011 (direction) The petitioner is aggrieved of the impugned order of learned M.M., Delhi dated 25^^ August, 2009, whereby the complaint under Section 138, N.I.Act filed by the petitioner was dismissed for non-prosecution/non- appearance of the complainant/petitioner. I have been informed by learned counsel for the petitioner that the ^ impugnedorderdated 25.08.2009dismissingthe complaintwas at the stage of evidence after framing of notice under Section 251 CrPC. Section 256 of the Code of Criminal Procedure deals with the situation arising out of non- appearance or death of the complainant, which reads thus: "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: Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Provided that wtiere 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". On reading of the above, it is apparent that if, after the issue of process to the accused, the complainant failed to appear in trial on the date of hearing, the Magistrate shall, notwithstanding anything contained in CrPC, acquit the accused unless for some reason, he thinks it proper to adjourn the hearing. In the instant case, learned M.M., in his discretion, has opted to dismiss the complaint due to non-appearance. Therefore, the impugned order amounts to acquittal, as such, aforesaid order is an appealable order and can be appealed in this court. Section 401(4) of the Code of Criminal Procedure provides that where under this Code, an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained. In view of the above, present revision petition is not maintainable. It is accordingly dismissed. However, the petitioner, if so advised, may seek his E remedy in appeal. Petition as well as the miscellaneous application is dismissed. (AJIT BHARIHOKE) JUDGE AUGUST 01, 2011 akb