Opportunity for deciding the case on merits should be afforded before acquittal due to non-prosecution.

JUDGMENT

Tirthankar Ghosh, J. - The present appeal is against the order dated 09.8.2018 passed by the learned Metropolitan Magistrate, 4th Court, Calcutta, wherein the accused O.P no. 2 was acquitted from Complain Case no. C-37773 of 2009 under Section 138 of the Negotiable Instrument Act.

2. The record reflects that on 03.8.2018 date was fixed for arguments of the case. As the complainant was absent on 03.8.2018, the learned Magistrate was pleased to issue show cause to the complainant why the case should not be dismissed for non-prosecution and thereafter on 09.8.2018 the learned Magistrate acquitted the accused O.P no. 2 from the case under Section 256(1) Cr.P.C. Later on the same day a prayer was advanced on behalf of the complainant for affording certain time to file show cause. However, the order being passed earlier the learned Court did not entertain the same.

3. It is reflected from the records of the case that in this case evidence has already been recorded on behalf of the prosecution as well as the defence. The examination under Section 313 Cr.P.C was also conducted. Subsequently, an application under Section 311 Cr.P.C was pending when the learned Court was pleased to reject the same and fix dates for final argument of the case on merits.

4. I find that the learned trial Court has taken all endeavour from the year 2009 to complete the evidence of the case. But for laches on two consecutive dates for non-appearance of the counsel of the complainant or the complainant himself, the case was dismissed for non-prosecution.

5. Having regard to the materials, which are before the Court, I am of the opinion that further opportunity should have been afforded for deciding the case on merits. As such, the order of acquittal dated 09.8.2018 thereby acquitting the accused under Section 256(1) Cr.P.C is set aside.

6. Accordingly, the criminal appeal being CRA 139 of 2019 is allowed.

7. The present appellant/complainant is directed to appear before the learned Court below on or before 26.3.2020 and communicate the order of this Court so that the arguments can be heard before the learned Metropolitan Magistrate, 4th Court, Calcutta, by or before 20.5.2020.

8. Department is directed to send back the lower court records immediately, preferably within a period of fifteen days from the date of this order.

9. Urgent photostat copy of this order, if applied for, be given to the parties on usual undertakings.