Honble SINHA, J.–Leave granted.

(2). Appellant issued two cheques for a sum of Rs. 5,00,000/- (Rupees Five lakhs) each in favour of the original complainant - i.e. S. Rami Reddy (since deceased) on or about 9.1.2001 and 10.1.2001.

The said cheques were deposited in a bank for collection on or about 25.2.2001. They were dishonoured.

Rami Reddy filed a complaint petition in the Court of Additional Judicial Magistrate First Class, Kurnool purported to be under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (for short the Act) on 6.6.2001. It was registered as C.C. No. 368 of 2001. Rami Reddy expired on 28.10.2003. Respondents herein filed an application for substitution of their names in place of the said Rami Reddy on 22.12.2003. Appellant filed an objection thereto. No order was passed on the said application. The counsel appearing on behalf of the complainant started representing the proposed heirs of the said Rami Reddy. It appears that on or about 18.4.2005 till 23.1.2006, i.e., on 14 dates nobody represented the complainant.

(3). On 23.1.2006, noticing that the respondents had not been attending the Court for a long time, the appellant was acquitted by the learned Magistrate in purported exercise of his jurisdiction under Section 256 of the Code of Criminal Procedure. An appeal was preferred thereagainst before the High Court of Andhra Pradesh questioning the validity of the order dated 23.1.2006.

By reason of the impugned judgment, a learned single Judge of the High Court set aside the said judgment of acquittal holding:

"A perusal of the docket order passed by the Court below, coupled with the extract of diary maintained by the Court below, show that the matter has undergone several adjournments due to the absence of the appellants only, and ultimately, on 23.1.2006 the trial Court passed the impugned order. From this it is clear that the appellants are not interested in getting the matter prosecuted. However, as this Court has consistently taken the view that any lis between the parties shall be decided on merits rather than on technicalities, this Court is of the view that the appellants may be given one more opportunity to get the matter prosecuted."

Appellant is, thus, before us.

(4). Mr. Guntur Prabhakar, learned counsel appearing on behalf of the appellant, would submit that the High Court had committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that since the complainant remained absent for a long time, there was no justification for setting aside the order of acquittal passed by the learned Magistrate.

(5). The learned counsel appearing on behalf of the respondents, however, supported the impugned judgment.

(6). Admittedly, the respondents themselves did not seriously press their applications for their substitution in place of the original complainant.

(7). Section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order of acquittal on non-appearance or death of the complainant.

The complaint petition was filed in the year 2001. Rami Reddy died in 2003. A large number of dates were fixed for hearing of the case. Although, on some dates, the respondents were either present in Court in person or were represented by their Advocate, but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they remained absent.

The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date; and (iii) the date on which the order under Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned.

It is not a case where the proviso appended to sub-Section (1) of Section 256 of the Code was applicable.

(8). The matter remained pending for more than five years. It

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