A magistrate's acquittal under Section 256 Cr.P.C. must involve judicial discretion, not automatic procedure upon a complainant's absence.

JUDGMENT

This appeal is filed against an order of acquittal of the accused in S.T.No.52/2017 on the files of the Judicial First Class Magistrate Court-II, Thiruvalla. Parties are referred to as they were in the impugned order, the appellant being referred to as the complainant and the first respondent as the accused.

2. By the impugned order dated 27.04.2022, the accused was acquitted under Section 256 Cr.P.C., due to non-appearance of the complainant.

3. The appellant was the complainant in the aforementioned case. The complaint was filed alleging dishonour of cheque No.520625 dated 15.07.2013 drawn on South Indian Bank, Mallappally West Branch, for an amount of Rs.5,00,000/-.

4. The complainant alleged that the accused had issued a cheque in discharge of a liability of Rs.5,00,000/- which was dishonored when presented for encashment, with the memo "funds insufficient. After complying with the statutory formalities, the complaint was filed. Subsequently, since the complainant was absent on 27.04.2022, despite a specific direction issued for his appearance, the accused was acquitted by the impugned order.

5. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor. Despite service of notice on the first respondent through the SHO of Kasaba Police Station, Kozhikode; none appears on his behalf.

6. On a perusal of the proceedings sheet of the trial court in S.T.No.52/2017, it is noticed that the complainant was examined as PW1, as early as on 24.09.2019. Thereafter, due to Covid-19 Pandemic, the case had to be adjourned repeatedly. On some of the posting dates, the court was not sitting, and hence, the case was adjourned by notification. Subsequently, on 19.04.2022, the court directed the complainant as well as the accused to be present on the next posting date. However, since the complainant as well as the accused were both absent on the next posting date and no application to condone their absence was even filed, the trial court acquitted the accused under Section 256 Cr.P.C.

7. 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.

8. 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.

9. 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. Henc