The absence of a complainant in a criminal case can lead to an implied acquittal of the accused under Section 256 of the Cr.PC.

JUDGMENT :

K. Babu, J.

The challenge in this Criminal Appeal is to the order dated 19.08.2022 passed by the Judicial First Class Magistrate Court-II, Thamarassery in S.T.No.32/2021. The appellant is the complainant in the case before the Trial Court.

2. The appellant filed a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 against respondent No.1. The learned Magistrate took cognizance of the offence and issued summons. The case was scheduled for recording evidence on 19.08.2022. On that day, the complainant failed to appear. The learned Magistrate passed the following order:-

“This is a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and dismissed it as the complainant remained continuously absent without giving evidence on 20.10.2021, 07.04.2022 and 05.07.2022 without filing application for his absence and the application filed seeking excuse for his absence on 19.08.2022 shown no sufficient cause for his absence despite having sufficient time and opportunity for giving evidence for a period from 15.05.2021 to 19.08.2022 including four non sitting days.”

3. The complainant filed special leave to appeal under Section 378(4) of the Cr.PC. This Court granted leave to appeal. Thereafter, the complainant filed the present Criminal Appeal. This Court admitted the appeal and issued notice to the party respondent.

4. I have heard the learned counsel for the appellant, the learned counsel appearing for the party respondent and the learned Public Prosecutor.

5. Since the impugned order does not contain a judgment of acquittal as mandated by Section 256 Cr.PC, a preliminary objection has been raised on the maintainability of the appeal.

6. The learned counsel for the appellant submitted that as Section 256 Cr.PC mandates that the order/judgment shall be a judgment of acquittal and even if the learned Magistrate omitted to specify to the effect that the accused had been acquitted, by implication the order impugned is an order of acquittal.

7. The learned Public Prosecutor also concurred with this view. There are no counter submissions on this aspect.

8. Section 256 Cr.PC reads thus:-

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 hereinbefore 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.”

9. The three courses open to the Magistrate where the complainant is absent on the date of hearing are:-

(i) to acquit the accused;

(ii) to adjourn the case for a future date;

(iii) to dispense with the attendance of the complainant and proceed with the case.

It is the sole discretion of the court as to the course to be followed which must be judicially exercised.

10. In the present case, the learned Magistrate has adopted the first course and did not proceed with the second and third courses. The eventual result is that the accused stood acquitted due to the absence of the complainant as mandated in Section 256 Cr.PC. Though the order impugned does not contain an order to the effect that the accused had been acquitted, the result of the order was the acquittal of the accused. Therefore, the preliminary objection is overruled.

11. The learned counsel for the appellant submitted that the appellant had been diligently p