An order of acquittal under Section 256 Cr.P.C. isn't automatic; courts must evaluate the circumstances and grant opportunities judiciously.

JUDGMENT

This appeal is filed against an order of acquittal of the accused in S.T.No.664/2020 on the files of the Judicial First Class Magistrate Court-II, Kothamangalam. Parties are referred to as they were in the impugned judgment, the appellant being referred as the complainant and the first respondent as the accused.

2. By the impugned order dated 12.12.2024, the learned Magistrate has dismissed the complaint under Section 256 Cr.P.C. (sic).

3. The appellant was the complainant in the aforementioned case. The complaint was filed alleging dishonour of a cheque No.64239 dated 29.12.2018 drawn on the Axis Bank, Thrippunithura Branch, for an amount of Rs.13,63,000/-.

4. Though the case was posted before the trial court for evidence on

23.08.2022, the complainant did not appear to give evidence. Despite repeated adjournments, the complainant failed to adduce evidence, and therefore, the trial court acquitted the accused [wrongly stated as complaint is dismissed in the impugned order].

5. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor.

6. Though Section 256 Cr.P.C confers power upon the Magistrate to acquit the accused on his failure to appear on the day fixed for hearing, the provision also provides for a discretion to the Magistrate to adjourn the case to some other day. The proviso to the said provision also contemplates the grant of an adjournment in a situation where the Magistrate is of the opinion that the personal appearance of the complainant was not necessary on the said date. It is thus evident from a reading of the provision that an order of acquittal even under Section 256 (1) Cr.P.C is not a routine procedure or to be carried out automatically. The Magistrate must consider the surrounding circumstances including whether the case has been prosecuted with bona fides or in good faith.

7. In the decision in Associated Cement Co. Ltd. v. Keshvanand (1998)

1 SCC 687 Supreme Court had observed that the provision affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion. The Court also observed that an accused is forced to attend the court on all posting days and it will be a harassment to him, if the complainant does not turn up to the court on occasions when his presence is necessary. The provision thus, is intended to afford a protection to the accused against tactics deployed by a complainant.

8. Though the power is available, it ought not to be interpreted to mean that if the complainant is absent, the court must acquit the accused without any other option. Invariably, such a procedure will only end up in continuing the litigation further, by the aggrieved resorting to approach the higher forum for redressal of his grievance. Hence courts should not normally proceed to pass an order of acquittal in an automatic manner merely on the complainant's absence from the court on a particular date. There should be an application of mind to the question as to whether an order of acquittal under section 256 Cr.P.C should be passed.

9. The circumstances in the case reveal that the complainant had been negligent and reluctant in prosecuting the matter, perhaps considering the quantum of cheque involved in the dispute. However, taking into consideration the practical difficulties pointed out by the learned counsel for the complainant, I am of the view that an opportunity can be granted to the complainant as well as the accused to obtain a judgment on merits. Since I have already observed that the complainant has been negligent, the said opportunity can be granted only on terms.

In the result, this appeal is allowed subject