The main legal point established in the judgment is the requirement for judicial discretion before passing an order of acquittal under Section 256 of the Code of Criminal Procedure and the necessity to consider the previous conduct of the complainant and the complainant's presence for the progress of the case.

JUDGMENT :

1. The appellant, a proprietorship firm filed a complaint under Section 138 of the Negotiable Instrument Act. The said complaint was registered as Case No.C-79 of 2010 in the court of learned Chief Metropolitan Magistrate, Calcutta. The case was subsequently transferred to the 3rd Court of the Metropolitan Magistrate, Kolkata for trial and disposal. It appears from the lower court record that on 20th July, 2017, the accused was examined under Section 251 of the Code of Criminal Procedure. Substance of acquisition under Section 138 of the Negotiable Instrument Act was stated and explained to him. He pleaded not guilty. Accordingly the case was fixed for trial. Next date for recording evidence was fixed on 30th October, 2017. On that date the complainant was present; the accused was represented under Section 205 of the Code of Criminal Procedure by his learned Advocate; however, trial of the case did not commence and the learned Magistrate suo moto adjourned the hearing of the case fixing 13th March, 2018 for evidence. On 13th March, 2018 the complainant was absent without any step. Therefore, the learned Magistrate directed him to file show cause as to why the case shall not be dismissed for non-prosecution fixing 10th April, 2018 for filing show cause by the complainant. On 10th April, 2018 the complainant was again absent without any step. Therefore, the learned Metropolitan Magistrate, 3rd Court, Kolkata acquitted the accused under Section 256 of the Code of Criminal Procedure. The instant appeal is filed by the complainant of the aforesaid case assailing the order of acquittal passed in favour of the respondent by the court below on 10th April, 2018.

2. Learned Advocate for the appellant submits at the outset that in a summons case, the court can pass an order of acquittal under Section 256 of the Code due to non appearance of the complainant. However, the said order is not automatic. An order under Section 256 of the Code cannot be passed on mere absence of the complainant. The learned Magistrate is under obligation to exercise such power judicially and fairly without impairing the cause of administration of criminal justice. Such power cannot be invoked, unless the court finds for some good reasons, it would not be proper to adjourn the hearing of the case to some other date. In other words, before taking recourse to the provision of Section 256 of the Code, the court has to come to a conclusion that there is no justifiable reason to adjourn the hearing of the case. Therefore, even when the complainant is absent the court before exercising its discretion under Section 256 of the Code has to record that there is no good reason for which it would be proper to adjourn the hearing of the case to some other date. The learned Advocate for the appellant next takes me to the impugned order. The relevant portion of the order runs thus:-

“On perusal of the case record, I find that since 13th March, 2018 the complainant was absent without step. The complainant was directed to file show-cause but no show-cause has been filed till date.

Such conduct of the complainant only reveals a delaying tendency on the part of the complainant.

The complainant, thus, evidently shows a lack of interest on proceeding with the instant case.

It is seen that the provision of Section 256 Cr.P.C is attracted to the facts and circumstances of this case.

In view of the above, the accused person(s) is/are acquitted under Section 256 of the Code of Criminal Procedure.

The accused person(s) be discharged from his/her/their respective bail bond(s) and be set at liberty at once.

Recall process, if any.

Note in T.R.”

3. According to the learned Advocate for the appellant the learned Magistrate did not exercise his judicial discretion and mechanically passed the order. It is true that on 13th March, 2018 and 10th April, 2018, the complainant was absent but he failed to consider that the complainant was present to adduce evidence on 27th November, 2013, 19th Nove