This appeal is preferred by the complainant against the acquittal of the accused in S.T.No.3148/2000 of the Judicial First Class Magistrate, Ottapalam under section 256 of Code of Criminal Procedure (hereinafter referred to as the Code). The above complaint was filed against the accused u/s.138 of the Negotiable Instruments Act. On 22.9.2004 the complainant was absent and his counsel applied for leave and sought for an adjournment, which was rejected by the learned Magistrate, since there was a specific direction to produce the complainant for evidence. On that day the accused was absent, his application was allowed, however the accused was acquitted by the learned Magistrate. Being aggrieved by that complainant preferred this appeal.

2. The main contention put forward by the appellant is that he was hospitalized and he could not appear before Court, therefore court should have adjourned this case to another day for giving an opportunity to prove the allegation.

3. There was no appearance for the accused, hence learned Public Prosecutor in reply submitted that the section empowers that the accused should be acquitted in cases where the complainant is absent on the specific date of hearing.

4. Section 256 of the Code reads as follows:-

"Non-appearance or death of complainant.-(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

5. A perusal of Section 256(1) of the Code shows that in a case where summons has been issued to the accused for his appearance on a particular day or any day subsequent thereto and the complainant does not appear the Magistrate shall acquit the accused, unless he thinks it proper to adjourn the hearing to some other day. If the complaint is represented by a pleader, where the Magistrate thinks that personal attendance of the complainant is not necessary, he may dispense with his attendance and proceed with the case. In a case where the complainant is absent on previous several occasions and he is negligent in producing witnesses, the court would be justified in drawing an adverse inference from his absence and acquit the accused. In such a situation also he has to decide the course to be followed only after taking into account the materials available on record and on the application filed by the lawyer. Even then, it is open to the court to proceed with the case if the presence of the complainant is not required on that day. In certain cases number of adjournments have been given not at the instance of the complainant but for some other reasons and the complainant was present on all the previous hearings and on a particular day, complaint is absent, it cannot be said that the complainant was slow in prosecuting the case. In such cases, there is nothing wrong in adjourning the case to another date so that Magistrate can satisfy himself that the absence of the complainant was not due to lack of diligence. But if the complainant's presence is not required on the particular day, he may dispense with his attendance and proceed with the case. In all such situation, the Magistrate is expected to exercise his discretion judicially.

6. A single Judge of this Court in C.K. Sivaraman Achari v. D.K. Agarwall and Anr [1978 Crl.LJ 1376] had the oc