Court discretion is necessary in acquitting accused due to complainant's absence; automatic acquittal undermines justice.

JUDGMENT

The appellant challenges the judgment (wrongly mentioned as 'order') dated 08.11.2024 in S.T.No.619 of 2020 on the files of the Judicial First Class Magistrate's Court-II, Kothamangalam. By virtue of the said judgment, the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed (sic for 'acquittal').

2. The prosecution alleged that the accused had, in discharge of a legally enforceable debt issued two cheques for Rs.2,16,650/-, which when presented for encashment returned dishonoured with the memo 'funds insufficient'. Thereafter, consequent to the compliance of the statutory requirements, the complaint was filed. However, when the case was posted for evidence, the complainant failed to appear and hence the learned Magistrate acquitted the accused by the impugned order. 3. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor. Though notice was served on the accused, none appears on his behalf.

4. The complainant was prosecuting a proceeding under Section

138 of the N.I.Act. The case was posted for evidence on 28.10.2023 and thereafter the case was adjourned repeatedly. Despite the case having been posted for evidence on 08.11.2024, the complainant failed to appear and hence the impugned order was rendered.

5. Section 256 Cr.P.C confers power upon the Magistrate to acquit the accused if the complainant fails 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.

6. 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 in 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.

7. 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 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 or not.

8. In the instant case, the learned Magistrate had noted that the complainant had continuously absented himself. Still, considering the entire circumstances, a lenient view can be adopted. Since the accused has been acquitted on a technicality for the failure of the complainant to appear on the date posted for evidence, and taking note of the large amount involved, an opportunity ought to be granted to the complainant to adduce his evidence. Hence, I am satisfied that the impugned order ought to be set aside and the complainant be given an opportunity to adduce his evidence.

Accordingly, the impugned order dated 08.11.2024 in S