1. This appeal is preferred against the order in S.T. No. 1575 of 2003 of the Judicial First Class Magistrate Court-I, Kannur. The above complaint was filed by the appellant against the accused alleging the offence punishable under Sec.138 of the Negotiable Instrument Act (hereinafter referred to as ‘the NI Act’ for short). As per the order in S.T.No.1575 of 2003, the learned Magistrate acquitted the accused under Sec.256(1) of the Code of Criminal Procedure on the ground of non appearance of the complainant before court.

2. Heard both sides. Learned counsel appearing for the appellant contended that the appellant was vigilant in prosecuting the matter. It is submitted that on 22.03.2004, the appellant could not appear in person before the trial court because there was no strict instruction to appear on that date. It is also submitted that on that date, he was represented by his counsel. Without considering that aspect, the learned Magistrate acquitted the accused, which is an illegality.

3. Sec.256 of the Code of Criminal Procedure 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.”

4. I have gone through the records of the lower court. When the matter is taken up on 02.08.2003, the complainant and accused were represented through their counsel. Summons was issued to the accused through the Sub Inspector of Police, Kannur Town Police station to appear on 17.10.2003. But, on that date, complainant was present, accused was absent and hence the case was posted to 22.12.2003. On 22.12.2003, the accused was present, but the complainant again represented and bail granted to the accused. Lastly, when the matter was taken up on 22.03.2004, the complainant and the accused were absent. Hence, the learned Magistrate acquitted the accused under Sec.256(1) Cr.P.C. due to the non-appearance of the complainant before the court on that date.

5. According to the proviso, where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The discretion is vested with the Magistrate to decide whether he has to adjourn the case or not. Therefore, Sec.256 of the Code of Criminal Procedure has to be applied with due care and caution. The statute itself contained the reason why care should be exercised at the time of absence of the complainant. If the absence will vitally affect the case, the Magistrate can apply his discretion. Here, no reasons are recorded by the learned Magistrate at the time of acquitting the accused. This Court in Govindan Nambiar v. Chidamberaswara Iyer, 1961 KLT 797 held hat it is not proper to throw out a case in a hasty or thought-less manner without giving opportunity to prove the bonafides.

6. Another decision of the Apex Court in Associated Cement Co. Ltd. v. Kesavanand, 1998 (1) SCC 687 held as follows:

“Section 247 of the Criminal Procedure Code, 1898 (Section 256 of the new Code) affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion throug