1 Can a Magistrate acquit an accused under S.256(1) of the Code of Criminal Procedure on any ground other than "non appearance of the complainant"? This short question comes up for consideration in this appeal.

2 This is an appeal filed against the order of acquittal under S.256(1) of the Code of Criminal Procedure ('Code', for short). The appellant filed a complaint alleging offence under S.138 of the Negotiable Instruments Act against the first respondent. The complaint was taken on file and summons was issued to the accused. Thereafter, the case was posted to several dates. On 17-8-2004, warrant was issued against the accused. The case was then posted to 17-11-2004. On that day, learned Magistrate acquitted the accused under S.256(1) of the Code.

3 The impugned order reads as follows:
"The case was called on for hearing today to which it had been adjourned. The complainant not being present either in person or by pleader, the accused is acquitted under S.256, Criminal Procedure Code."

4 Learned Counsel for appellant submitted that the complainant was actually present in Court on the crucial day and hence, the Trial Court seriously erred in acquitting the accused on the alleged g