K. Hema, J.

What is the procedure to be followed in a summons case, when the accused appears in court and pleads not guilty? Can the court straight away post the case for "evidence" or, is it necessary for the court to post the case for "hearing", after recording plea of not guilty? Can the court acquit the accused, under Section 256(1) of the Code of Criminal Procedure ('the Code' for short), if evidence is already adduced in part or on the day to which, the case is posted for "evidence"? These are some of the important questions which arise for consideration in this appeal.

2. The appellant is the complainant. He filed a complaint against the 2nd respondent herein, on 3.3.2005, alleging offence under Section 138 of the Negotiable Instruments Act. The accused entered appearance and he pleaded not guilty. The case was thereafter, adjourned to different dates and, ultimately it was posted for evidence from 13.07.2006 onwards. But, the complainant was absent on one such posting on 28.07.2006. The case was then adjourned to 01.09.2006, with a specific direction to the complainant to be present. The complainant did not appear on 01.09.2006 also. Hence, the court acquitted the accused under section 256(1) of the Code. The said order is under challenge in this appeal.

3. Notice was issued to the respondents. The 1st respondent is the State. The 2nd respondent is the accused. He accepted notice but, did not appear in person nor did he enter appearance through counsel. Hence, learned counsel for appellant and learned Public Prosecutor were heard.

4. According to learned counsel for appellant, the complainant was present in court on the date on which, the accused was acquitted. By mistake, his counsel omitted to represent the case, when the case was called. The court also failed to notice the presence of the complainant. The complainant was diligently prosecuting the case and he had filed proof affidavit, in lieu of chief- examination on the previous day of acquittal and hence, the trial court ought to have adjourned the case to some other day for evidence, it is submitted.

5. On hearing both sides and on going through the records, I find it essential to read Section 256 of the Code. Before that, the relevant portion from the impugned order can be extracted as hereunder:

"Having taken cognizance of the offence under s.138 of the Negotiable Instruments Act the case was posted for evidence to 13.7.06. But on 13.7.06 the complainant was not ready for evidence and the case was adjourned to 28.7.2006. On 28.7.2006 also complainant remained absent. Hence the case was again adjourned to 1.9.06 with a specific direction to produce the complainant and get ready for evidence. But today (1.9.06) also the complainant is absent and there is no representation also on his behalf."

6. The above extract reveals that the accused in this case was acquitted, since the complainant did not get ready for evidence. Despite specific direction issued to complainant to adduce evidence, he remained absent and there was not even any representation on his behalf. The records also reveal that the complainant had filed affidavit in lieu of chief examination and adduced evidence in part and the case was adjourned for "evidence" to the date on which the accused was acquitted. Can the court invoke Section 256 of the Code to acquit the accused in a case in which evidence is adduced in part and adjourned for "evidence"? Section 256 of the Code reads as follows:

"256. 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 o