Short Note : This is an appeal by the State of M.P. against the order of acquittal of the respondent Surendraprasad under section 420 of the I.P.C. recorded by Magistrate First Class, Vaidhan. 2. I have heard Shri A.G. Telang, Dy. Govt. Advocate for the State and Kumari Nagrath for the respondent. I am of the view that the order of acquittal of the respondent is clearly erroneous. 3. A perusal of the order sheets shows that the challan was filed on 27-4-70. After some intervening hearings, charge, under section 420 of the I.P.C. was framed against the respondent on 12-1-1972. It was directed that prosecution witnesses be summoned and the case was posted for 23-04-72. On this date, one witness Shri K.P. Singh was examined, cross-examined and discharged. Other witnesses for the prosecution were absent and their summons were not back. The Magistrate, without waiting for the summons of the witnesses, discussed the evidence of witness K.P. Singh who did not support the prosecution and then recorded a finding that the prosecution failed to prove the case against the respondent. Held : Kumari Nagrath, Advocate for the respondent, placed reliance on 1972 M.P.L.J. 185 (State of M.P. v. Kalu and another) and AIR 1963 SC 316 (Abinash Chandra Bose v. Bimal Krishna Sen and another). In the 1972 MPLJ case, it is observed that there can be no doubt that the Court should see that its summons and warrants are duly executed and that having issued a process, the Court ought to enforce the attendance of witnesses before acquitting the accused. Therefore, this case is dearly distinguishable, because the observations of that case relate to section 244(2) Cr. P. Code, i.e., summons procedure. But section 420 is triable as a warrant case. The Supreme Court case itself mentions that the prosecution, though having full opportunity to adduce proper evidence not taking steps to adduce it, retrial for giving opportunity to the complaint to adduce evidence, was held not proper. But in our case, full opportunity to adduce evidence was not given, because on the very next date when the summonses were not received back and without ascertaining whether the witnesses were served or not, the Magistrate wrongly relied upon the evidence of K.P. Singh and recorded an order of acquittal. The order is thus clearly erroneous and deserves to be set aside. Appeal allowed.