J U D G M E N T

S.B. SINHA, J:

1. Leave granted.

2. Appellant was being prosecuted in the Court of Metropolitan Magistrate, Saidapet, Chennai for alleged commission of an offence under Section 138 of the Negotiable Instruments Act (for short the Act ) on the basis of a complaint petition filed by the respondent herein.

3. In the said proceedings, witnesses on behalf of the prosecution had been examined. Complainant closed her case. A date was fixed for examination of the defence witness and argument on 10.04.2006.

However, the appellant filed an application for cross-examination of the complainant herself which was rejected. A revision application was filed thereagainst in the Court of the Sessions Judge. In the said revision application, no order of stay was passed. Whereas the appellant had continuously remained present before the Trial Judge, the complainant remained absent.

4. On or about 18.04.2006, the appellant filed an application for his acquittal on the ground of absence of the complainant. By an order dated 24.04.2006, the learned Metropolitan Magistrate acquitted the accused under Section 256(1) of the Code of Criminal Procedure stating:

Complainant absent. No representation for several hearings. Accused present. Petition u/s 256(1) Cr. P.C. is allowed. Complainant continuously absent from the hearing date 3.3.05. Hence, Complainant called three times. Neither the complainant nor his counsel represent before the Court till 5.30 p.m. CW1 examined. Hence Accused is acquitted u/s 256(1) of Cr.P.C.

5. An appeal was preferred thereagainst before the High Court. The same was allowed relying on or on the basis of a decision of this Court in Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687 : AIR 1998 SC 536].

6. We may, at the outset, notice that before passing the impugned order, the High Court did not choose to serve notice upon the appellant opining that no useful purpose would be served in keeping the appeal pending and one G. Vinodkumar was appointed as a legal aid counsel.

Aggrieved thereby, the appellant is before us.

7. It was submitted by Mr. Anand, appearing in person, that the complainant having remained absent for more than one year, the High Court ought not to have interfered with the discretionary jurisdiction exercised by the learned Metropolitan Magistrate, particularly when he had been appearing in person and the complainant not only executed a power of attorney in favour of another, a lawyer was also appointed. Mr. Anand would submit that it was obligatory on the part of the advocate who is an agent of his client to appear on the dates of hearing, more so when an accused had been appearing in person and remained present in court for all the days of hearing. In any event, it was urged, the High Court committed a serious error in disposing of the appeal only upon hearing a legal aid counsel and even the submissions made by him had not been noticed.

8. Mr. A. Regunathan, learned senior counsel appearing on behalf of the respondent, however, submitted that in view of the fact that the matter was adjourned for examination of DWs, the learned Magistrate could not have exercised its jurisdiction under Section 256 of the Code of Criminal Procedure.

9. Chapter XX of the Code of Criminal Procedure deals with trial of summons cases by Magistrates.

Section 256 of the Code reads as under:

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 he