A.K. Goswami, J.

1. The present appeal has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973, against the order of acquittal dated 19.4.2008 passed by the learned Judicial Magistrate 1st Class, Kamrup, Guwahati, in Complaint Case No. CR 2432c/2002, registered under Section 138 of the Negotiable Instruments Act, 1881, consequent upon dismissal of the case for non-prosecution on account of complainant being absent. The appellant had also filed an application under Section 378(4) of the Code of Criminal Procedure, 1973, praying for grant of special leave to appeal. Notice was issued to the respondents on the application for special leave. The said application was not contested by the respondents and, thereafter, by an order dated 24.2.11, special leave to appeal was granted. While admitting the appeal on 24.2.11, notice was directed to be issued to the respondents i.e. the accused as well the State of Assam. Registered steps taken on the respondent No. 1/accused was refused by the respondent No. I/accused, This Court, by an order dated 2.5.11, held that notice upon the respondent No. 1, in the factual matrix, was deemed to have been served.

2. I have heard Mr. M. Choudhury, learned counsel for the appellant as well as Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam appearing for the respondent No. 2, the State of Assam.

3. Mr. Choudhury, learned counsel for the appellant, submits that during trial, the complainant had examined 4(four) witnesses and, thereafter, by an order dated 24.8.2007, the prosecution evidence was closed. On 19.9.2007, the accused was examined under Section 313, CrPC. On the prayer of the accused to adduce evidence, the case was fixed for defence evidence. However, in view of the absence of the accused, the learned Court below, by an order dated 21.1.2008, had closed the defence evidence. The learned counsel for the appellant also submits that after closer of the evidence of the prosecution on 24.8.2007. The appellant had also submitted a written argument on 19.9.2007 after serving copy of the same to the counsel for the accused. Though the evidence of the defence was closed by an order dated 21.1.2008, 1.2.2008 was once again fixed for statement and defence. The learned counsel submits that after the closer of the defence evidence, there could not have been any occasion for the learned trial Court to have again fixed a date for statement and defence. On 8.1.2008, the learned counsel, who was engaged to conduct the case on behalf of the appellant, had expired and subsequent thereto, the complainant had engaged another lawyer, who apparently did not take appropriate steps when the case was listed on 26.3.2008 and 19.4.2008.

4. Incidentally, on 19.4.2008, the order which has given rise to the present appeal, was passed. The learned counsel further submits that the appellant had to be hospitalized during that period because of her sickness and, therefore, there was no laches and/or negligence on her part. Besides, she had also informed the counsel about her hospitalization with a request to him to take appropriate steps.

5. Mr. Choudhury, learned counsel for the appellant had submitted that in the attending facts and circumstances of the case where the appellant had adduced her evidence, the accused was examined under Section 313 and the defence evidence stood closed, the only thing remained was to deliver a judgment on the basis of materials available on record. It is the submission of the learned counsel for the appellant that for the purpose of rendering of judgment, the presence of the complainant is not required. The learned counsel submits that in the summons procedure case like the one at hand, unlike Section 234 of the Code of Criminal Procedure, 1973, there is no express provision for advancing argument. The only provision available is Section 314, CrPC, which provides an opportunity to make oral arguments and also to submit a memorandum to the Court setting forth con