IMPORTANT POINT
Protection given under Section 256 of Cr.P.C. does not mean that if complainant is absent Court is duty bound to acquit accused.

Rajiv Shakdher, J.—Leave granted.

2. Briefly by this petition the order dated 20.4.2006 passed by the learned Magistrate in complaint No. 1559/1/2003 is sought to be assailed. By the said order the learned Magistrate has dismissed the complaint for non-prosecution and, consequently, acquitted the accused. The appellant being aggrieved has preferred the present petition to this Court.

3. The facts and circumstances in the background of which the present appeal has been instituted is briefly set out hereinafter:

3.1 The respondent being desirous of purchasing a vehicle, approached the Centurian Bank Ltd. (in short the ‘Bank’), through the appellant. The appellant at the relevant time was the constituted attorney for granting such like loans. For the said purpose a tripartite agreement bearing No. NE 1386/3/2001 dated 27.3.2001 (in short ‘tripartite agreement’) was executed amongst the appellant, the Bank and the respondent. It is not disputed that the loan was disbursed to the respondent, who purchased a vehicle bearing model No. 10.70 HSD. For the purposes of repaying of the said loan, the respondent had issued cheques. One such cheque drawn on the Nainital Bank Ltd. Br. Ranibagh, Distt, Nainital (UA) bearing No.434471, dated 5.6.2003, in the sum of Rs. 3,40,269, was presented by the appellant for encashment to its banker. The cheque was returned by the respondent’s banker vide memo dated 18.6.2003. Consequently, the appellant triggered the provisions of Section 138 of the Negotiable Instruments Act, 1881 (in short the ‘NI Act’) by issuing a statutory notice of demand dated 18.6.2003. This was followed by institution of criminal complaint on 27.8.2003. In the criminal complaint along with the respondent two other persons, who stood as guarantors, have been arrayed as accused Nos. 2 and 3. Along with the criminal complaint an affidavit by way of evidence was also filed by the appellant.

3.2. On 28.8.2003, the learned Magistrate after perusing the documents on record, the affidavit of evidence and upon hearing submissions on behalf of the complainant directed registration of the complaint and issuance of summons to the three (3) accused. The matter was posted for further proceedings on 6.4.2004.

3.3. On 6.4.2004, fresh summons were issued to the accused, as the earlier summons had not been returned.

3.4. The matter was posted on 19.4.2005. On 19.4.2005, the complainant was not present, however, the accused No.1 i.e., Mrs. Pushpa Chand was present along with her counsel. She was admitted to bail on furnishing a personal bond of Rs.10,000 and the surety of a like amount. Fresh summons were issued, in respect of accused Nos. 2 and 3 as they were ‘absent’.

3.5. The matter was posted to 28.8.2005. The matter was, however, taken up on 29.8.2005, as 28.8.2005 was declared a holiday on account of ‘Janmashtmi’. On 29.8.2005, there was one again no appearance on behalf of the complainant. Accused N0.1, Mrs. Pushpa Chand was also absent, however, an application for exemption from personal appearance was moved by her counsel on the ground that she was suffering from a viral fever. The learned Magistrate was pleased to grant her exemption from appearance for that day. In the bail application filed by accused No.3, the bail was granted on his furnishing a personal bond of Rs.10,000 with the local surety of a like amount. Fresh summons were issued in respect of accused No.2. The matter was posted to 20.4.2006.

3.6. On 20.4.2006, the case in the first instance was called out in the morning session, at that time there was no appearance on behalf of the complainant, while accused Nos. 1 and 3 were present with their counsel. Accused No.2 was still unserved. The learned Magistrate noted that process fee had not been filed. The matter was, however, kept back for 1 p.m. There was no appearance even at 1 p.m. The matter was called out once against post-lunch at 2.35 p.m., however, the same position obtained. Consequently, the learned Magistrate