A court should not automatically acquit an accused under Section 256 of Cr.P.C. based solely on the complainant's absence.

JUDGMENT

Appellant challenges the judgment of acquittal dated

28.12.2023 in S.T. No.50 of 2023 on the files of the Judicial First Class Magistrate Court-III, Attingal. As per the impugned judgment, the accused was acquitted under Section 256 of Criminal Procedure Code , 1973 (for short, ‘Cr.P.C.), since the complainant was neither present nor represented, on the date of posting.

2. The proceedings arose under Section 138 of the Negotiable Instruments Act , 1881, wherein the appellant alleged, as complainant, that the accused had issued a cheque in discharge of a legally enforceable debt, and thereafter, when it was presented for encashment, it returned dishonoured for ‘insufficiency of funds’. After the accused appeared in the Trial Court, the complainant, though absent on most of the occasions, was always represented by his counsel, except on 28.12.2023. The Trial Court without reference to the representation by the Counsel, noticed that the complainant had been absent regularly, and on that basis, acquitted the accused.

3. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor. None appears on behalf of the second respondent.

4. In the decision in Associated Cement Co. Ltd. v.

Keshvanand [(1998) 1 SCC 687] Supreme Court had observed that Section 256 Cr.P.C. affords some deterrence against dilatory tactics on the part of a complainant who sets 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.

5. 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.

6. Having regard to the fact that the complainant was all along represented except on 28.12.2023, I am of the view that the acquittal of the accused was not proper. Moreover, it is only appropriate that a judgment is obtained on merits rather than on technicalities. Hence, it is only just and proper to set aside the impugned judgment and remand it for a fresh consideration.

7. Accordingly, the judgment dated 28.12.2023 in S.T. No.50 of 2023 on the files of the Judicial First Class Magistrate Court-III, Attingal, is hereby set aside, and the matter is remanded to the Trial Court for fresh consideration. The appellant shall appear before the trial court on 21.01.2026, and on his appearance, the Trial Court shall issue fresh summons to the accused, as he has not appeared before this Court.

This appeal is allowed as above.