S.S.BYAS, J. - (1.)THE appeal is directed against the order/judgment of the Munsif and Judicial Magistrate, Railmarga dated April 18, 1988 by which the appellant's complaint was dismissed ant the accused Vardichand was acquitted of the offences punishable Under Section 4, 28(1) and 28(2) of the Rajasthan Agricultural Produce Market Act, 1961 (here in after to be referred to as 'the Act')
(2.)MATERIAL facts may be briefly recapitulated. The Krishi Upaj Mandi Samiti Fatehnagar, District Udaipur lodged a complaint through its Secretary Shri Mahavir Singh in the court below on 14 -3 -1985 against three accused for offences punishable Under Sections 4 and 28(1) and (2) of the Act. Out of three accused, two of them viz. Fateh Lal and Laxman Singh were arrested during trial. Accused Vardichand faced the trial. The complainant closed evidence, vide note on 28 -11 1987. The accused's statement Under Section 413, Cr. PC was recorded on 13 -12 -1987 and he was called upon to lead evidence in his defence. On 1 -2 -1988, he closed his evidence. Thereafter final arguments were heard on 20 -2 -1988 and the case was adjourned for pronouncement of judgment to 27 -2 -1988. On 27 -2 -1988, the judgment was not pronounced. On 22 -3 -1988 the learned Magistrate passed an order for rehearing the arguments of the parties. On 1 -4 -1988 arguments could not be heard as the members of the Bar were on strike. On 18 -4 -1988 when the case was fixed for re -hearing of the final arguments, neither the complainant nor his Counsel appeared. The Magistrate there upon passed the impugned order dismissing the complaint Under Section 256, Cr.PC and acquitting the accused of the offences he was called upon to take trial. Aggrieved against the aforesaid order/judgment, he complainant has come up in appeal.
I have heard Mr. M.C. Bishnoi learned Counsel for the appellant. Mr. B.R. Mehta learned Counsel for the accused -respondent and the learned Public Prosecutor.

(3.)IT was contended by Mr. Bishnoi that the entire approach of the learned Magistrate is palpably erroneous and unsustainable in law. Both the parties had led evidence and final arguments were also heard and the case was adjourned for pronouncement of judgement. In these circumstances, even if the learned Magistrate desired to re -hear the final arguments and the complainant was not present, the proper course was to decide the case on merits and it was highly improper to dismiss the complaint Under Section 256, Cr.PC. Reliance in support of the contention was placed, on Hakim Singh v. Bachchu Lal [1956 RLW 10] and C.R. Alwares v. Habool and Ors. [1959 AIR 100]. It was on the other hand contended by Mr. Mehta that the impugned order is perfectly legal and justified because neither complainant nor his counsel was present on 18 -4 -1988 when the arguments were to be heard again. I have bestowed by thoughtful consideration to the rival submissions.