Can a Magistrate acquit the accused under Section 256(1) of the Code of Criminal Procedure (the code, for short), before issuing process/summons to the accused? This short question arises in this appeal filed by the complainant, challenging the order of acquittal passed under Section 256(1) of the Code.

2. The appellant filed a complaint before a Magistrate’s Court, alleging offence under Section 138 of the Negotiable Instruments Act. The first respondent is the accused in that case. The case was taken on file by learned Magistrate and summons was issued to the accused by registered post. The case was then posted to another day. But, on that day, complainant was absent. His counsel was also absent. There was no representation for the complainant. Hence the accused was acquitted under Section 256(1) of the Code of Criminal Procedure. Is such an order sustainable?

3. Learned counsel appearing for complainant-appellant submitted that by an inadvertent mistake, a wrong date of posting was noted by both complainant and his counsel and hence, both of them were absent on the crucial day. Their absence was not willful. He also submitted that the presence of the complainant was no