M VIJAYKUMAR Vs. STATE OF A P

JUDGEMENT

(1.) The complainant in C.C.No.339 of 1995 has filed the present appeal against the acquittal. The appellant filed a private complaint under Section 138 of the Negotiable Instruments Act against the first respondent herein who is the accused therein. The complainant and his counsel were not present on 20.10.1997 and on account of the default on the part of the complainant and his counsel the VIII Metropolitan Magistrate, Vijayawada, on 21.01.997 acquitted the accused under Section 256 of the Code of Criminal Procedure.

(2.) It is represented by the learned counsel appearing for the appellant that the whole evidence was completed and the C.C.No.339 of 1995 was coming up for arguments and the date of adjournment was wrongly noted as 30th October, 1997 instead of 20th October, 1997 and since the complainant's counsel was not present on that day, the matter was adjourned to 21.10.1997 i.e., the next day on which date the Court below passed the impugned order dismissing the complaint and acquitted the accused. There is no gainsaying that the evidence was adduced in this case and the case was coming up for arguments. Section 256 of the Code of Criminal Procedure is germane for consideration in the context and it reads as under:

(3.) A perusal of the provision herein above excerpted shows that the accused can be acquitted for the default of the complainant on the date appointed for his appearance or on any subsequent date to which the case stands adjourned. If for any reason, the Magistrate thinks it proper to adjourn the hearing of the case to some other day, the accused shall not be acquitted. The proviso engrafted under the section elucidates the legal position further that where the complainant is represented by a counsel or where the personal attendance, in the opinion of the Magistrate, is not necessary, the Court can dispense with his attendance and proceed with the case notwithstanding the fact that the complainant is absent. Sub-section (2) thereof further shows that even if the complainant is dead, the situations obtaining inter alia in sub-section (1) and the proviso engrafted thereunder would apply. In other words, even if the complainant is dead, the case can be proceeded with provided the other conditions enumerated herein above are satisfied.