- (1.) HEARD learned counsel for the appellant -complainant and learned counsel for the State. Nobody appears on behalf of the opposite party.
(2.) THIS appeal is directed against the judgment of acquittal dated 28.04.1999 passed by Shri Shambhu Kumar Verma, Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 197 of 1995, T.R. No. 558 of 1999, by which judgment, the learned Judicial Magistrate acquitted the accused - respondent No.2 on the ground that in spite of several opportunities given to the complainant, they failed to produce any of the witnesses for cross examination after framing of charge after the appearance of the accused. It is submitted by learned counsel for the appellant that since the charges were framed under Section 420 and 138 of the N.I. Act, the case was triable under the provisions of the Trial of warrant cases -By Magistrates envisaged in the Chapter XIX of the Code of Criminal Procedure and as per the Section 246, the procedure led down under Section 246, Sub Para 4 and 5, where Para 4 states as under: "If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub -section (3) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross -examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken." Para 5 states as under: "If he says he does so wish, the witnesses named by him shall be recalled and, after cross -examination and re -examination (if any), they shall be discharged." Since, according to him, no wish was given by the accused, the acquittal of the accused - respondent no.2 is fit to be set aside.
(3.) ON the other hand, learned counsel for the State has opposed the same and submitted that it will appear from the lower court record order sheet that after the wish was disclosed, the court fixed the date of production of the witnesses which the prosecution failed to do so. 10/5/2014 Page 211 Birendra Kumar Singh Versus State Of Jharkhand;