C. Honniah, J.
1. In these appeals, the question that arises for consideration is whether the order passed by the Additional First Class Magistrate, Mangalore, acquitting the accused under Section 247 of the Criminal Procedure Code is, in ac-. cordance with the law.
2. The Provident Fund Inspector, Mangalore South Division, filed two com-plaints out of which these two appeals arise, against A. J. Coelho accused under Section 14 of the Employees' Provident Funds Act, 1952 and para. 76 (a) of the Scheme framed thereunder. The complaints were filed on 23-4-1971 and the court fixed the date of hearing on 24-6-1971 on which date the complainant was absent. Section 247 of the Criminal Procedure Code provides that if the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate, shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.
Mr. Santhos Hegde, learned Counsel appearing on behalf of the Provident Fund Inspector relied upon the decision reported in AIR 1934 Bom 130 : (35 Cri LJ 1139) (In re Jamnabai Meghji), in support of his contention that when the cases had been fixed nominally for hearing and the presence of the complainant was not necessary, acquittal of the accused under Section 247 of the Criminal Procedure Code is not correct. In that case it was pointed out that
the day referred to in Sections 247 and 249 of the Criminal Procedure Code is the day for hearing the case and not the day fixed nominally for hearing of the case and on which the case will not be reached. When a date is fixed for the hearing of the case, it is the duty of the parties to be present at any time in the course of the day when the court may call on the case for hearing, i.e., for the purpose of proceeding with it. It will be no excuse for a party to say that he expected his case would not be reached. If he is absent on the date fixed for hearing and the court is ready to hear the case, he cannot grumble at the result, for he has failed in an obvious duty. But the position is different if a case is only nominally fixed for hearing, when it cannot reasonably be expected to be reached and is not in fact reached during the day. It is not incumbent on a complainant in such a case to be present on one date after another over a period lasting, it may be, for many months and to remain in court all day long in order that he may hear with his own ears the date to which his case is postponed. Of course, if he wants to be consulted about the new date, that is a different matter. In that case he must subordinate his own convenience to that of the court, and if he is not present to say that he wants to say about the date, he must just accept the date fixed ex parte. Hence the penalty for not being present to hear the new date of hearing fixed should not be the same as the penalty for absence when the case is actually called on for hearing.
This case has no bearing on the facts of the cases on hand. He relied upon the case reported in (1960) 38 Mys LJ 1033 (Ranga Setty v. Kunna Setty). In that case, it was pointed out that the discretion whether to adjourn or not under Section 247 of the Criminal Procedure Code has to be exercised with great care and caution and that the compulsion to acquit arises only after the Magistrate has exercised his discretion and come to the conclusion that there are no valid grounds for adjourning the case.
From the orders of the learned Magistrate, it is clear that adjourning the cases suo motu did not arise before him at all. The ratio of the decision referred to above is not applicable to the facts of the cases on hand. If the complainant is absent when the case is called out and when no reason is shown to the court for the absence of the complainant, naturally the court would presume that the complainant is absent because he does not wish to go on with the case, and accordingly an order of acquittal is made whatever the nature of the case may be, In these cases, the date of hearing was fixed on 24-6-1971, for hearing. It was the duty of the complainant to have been present on that date. His absence clearly brings these cases within the ambit of Section 247 of the Criminal Procedure Code and the orders of acquittal passed by the learned Magistrate are justified.
3. In the result, these appeals fail and are dismissed.