JUDGMENT : A.K. Parichha, J. - This is an appeal against the order of acquittal recorded by Learned J.M.F.C., Jagatsinhpur in I.C.C. No. 313 of 1978. 2. The present Appellant filed the aforesaid complaint case alleging criminal breach of trust and misappropriation by the Respondent during his incumbency as Secretary of Ambasal Service Co-operative Society. It was specifically alleged that the Respondent as Secretary of the Society was entrusted with the records, Registers, cash and valuables of the Society but out of the said assets he misappropriated an amount of Rs. 17,119.36 paise. Basing on the allegation Learned J.M.F.C., Jagatsinhpur took cognizance of the offence u/s 408, Indian Penal Code. The complainant examined 6 witnesses including himself and produced some documents before charge. Basing on such evidence charge u/s 408, Indian Penal Code was framed. The Respondent denied the charge and pleaded not guilty where upon Learned Magistrate directed the complainant to produce himself and his witnesses for cross-examination after charge. Three of the witnesses, namely, P. Ws 1,3 & 6 were cross-examined and discharged. P. Ws. 2, 4 & 5 however failed to appear on the date fixed for their cross-examination and complainant prayed for adjournment. The said prayer was rejected, evidence of P. Ws. 2, 4 & 5 were expunged and prosecution evidence was closed. Since Learned J.M.F.C. felt that the remaining prosecution evidence did not prove entrustment of cash or property of the Society to the accused Respondent, he recorded an order of acquittal. The said order is under challenge in this appeal. 3. Mr. N.C. Pati, Learned Counsel for the Appellant submits that the impugned judgment is legally unsustainable as Learned J.M.F.C. did not offer adequate opportunity to the complainant to produce himself and his witnesses for cross-examination after charge. According to him, expunging the evidence of P. Ws. 2, 3 & 5, who are vital witnesses to prove both entrustment and misappropriation, was against the spirit of Section 246 of the Code of Criminal Procedure. 4. Mr. A. Deo, Learned Counsel appearing for the Respondent on the other hand argues that production of the witnesses for cross-examination after charge was the responsibility of the complainant-Respondent and when despite several adjournments, he failed to produce himself, PWs 2 & 4, Learned J.M.F.C. had no alternative than to reject the pryaer for adjournment and to expunge the evidence of P. Ws 2,4 & 5. Supporting the impugned judgment Mr. Deo argues that the evidence on record in no way establishes entrustment of cash or properties of the Society to the Respondent and therefore, the order of acquittal is legally justified. He also offered an argument that the order relating to rejection of prayer for adjournment and expunction of the evidence of P. Ws 2, 4 & 5 having not been challenged in a revision, the said issue cannot now be agitated in the appeal. 5. Section 246, Code of Criminal Procedure. prescribes the procedure to be adopted by the Trial Court in a complaint case where the accused is not discharged. Sub-sections (4) & (5) of the said Section, which are relevant for the present appeal read as follows: 246. Procedure where accused is not discharged xxx (4) If the accused refuses to plea, 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. (5) 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. The above noted provisions clearly disclose that in a complaint case triable by warrant procedure, if an accused denies the charge then the Magistrate trying the case is obliged to ask the accused, if he wants to cross-examine any or all of the witnesses examined by the complainant before charge and thereafter recall those witnesses whom the accused desires to cross-examine. Thus a duty is cast on the Magistrate to ascertain from the accused if and which of the witnesses he wants to cross-examine after charge and thereafter recall those witnesses for cross-examinations. In this regard, the Apex Court, this Court and several High Courts have further clarified that when the charge is framed in a compliant case, the duty of the complainant comes to an end and it is for the Court to recall the witnesses for cross-examinations and also to take coercive measure against the witnesses who fail to appear despite summons from the Court. (See Muncipal Board, Mainpuri Vs. (See Muncipal Board, Mainpuri Vs. Raja Ram, ; K.N. Srivastava, Food Inspector v. Ram Bilash AIR 1978 All. 196; Kunj Behari Yadav Vs. Basdeo Yadav and Others, ; & Kaduri, 1965, 2. Cri.L.J. 295 (Ori). So the right to cross-examine the witnesses of the complianant after charge is an absolute unqualified right and accordingly the Court is duty bound to recall the prosecution witnesses if required by the accused. 6. In the present case P. Ws. 1 to 6 were examined by the complianant before charge and basing on their evidence charge u/s 408, I.P.C. was framed against the accused-Respondent who denied that charge. In that situation, Learned Magistrate was duty bound to ask the Respondent-accused as to which of the witnesses out of P. Ws. 1 to 6, he wants to cross-examine after charge and then recall those witnesses whom the accused wanted to cross-examine. But Learned Magistrate neither asked the accused as to which of the witnesses he wants to cross-examine nor issued any process for procuring the attendance of those witnesses. On the contrary Learned Magistrate directed the complainant to produce all the witnesses. It is worthwhile to note that in obedience to the direction of the Court, the complainant produced himself and his witnesses on 27.11.1986. But due to want of time on that day the cross examination of P. Ws. 2, 4 and 5 could not be undertaken and the case was fixed to 28.11.1986 on which date the complainant prayed for some time to produce the witnesses, but the said prayer was rejected, the evidence of P. Ws. 2, 4 & 5 were expunged and prosecution evidence was closed. As has been mandated in Section 246(5) of the Code of Criminal Procedure., it is the duty of the Trial Court to recall the witnesses for cross-examination after charge and if any witness fails to appear then to issue necessary step including coercive measure for appearance of such witnesses. Instead of undertaking that task, Learned Magistrate directed the complainant to produce the witnesses and because 3 of the witnesses who had appeared on the previous date failed to appear on the next date, their evidence were expugned in spite of a prayer for adjournment. Such action of the Learned Magistrate is not only against the norms of Section 246(5) of the Code of Criminal Procedure., but also violates the principles of natural justice. Such action of the Learned Magistrate is not only against the norms of Section 246(5) of the Code of Criminal Procedure., but also violates the principles of natural justice. Further more one has to take note of the fact that P. Ws. 2 & 4 are former Presidents and P.W. 5 is the Secretary of the Society and the complainant of the case. Needless to say that these witnesses are vital witnesses to prove the allegations of entrustment and misappropriation. Expunging their evidence was bound to cause prejudice to the complainant and result in miscarriage of justice. 7. It is pointed out by Learned Counsel for the Respondent that revision having not been filed against the order of rejection of the prayer for adjournment and expunction of the evidence of P. Ws. 2, 4 and 5 the issue cannot be entertained in appeal. It would be worthwhile to point out that on 28.11.1986 after the prayer for adjournment was rejected, the complainant-Appellant prayed for some time to file revision against the order, but that prayer was also rejected and the prosecution case was closed on that day and judgment was pronounced soon after. In such a situation, there was no scope for the complainant-Appellant to prefer any revision against the said order. Moreover, there is no legal bar to challenge the judgment of a Trial Court on the ground that adequate opportunity for production of evidence was not given by the Trial Court. 8. For all the aforesaid reasons, the impugned order of acquittal passed in I.C.C. Case No. 313 of 1978 is set aside and the case is remitted back to the Learned Magistrate for fresh disposal according to law after recalling P. Ws.2,4 & 5 for their further cross-examination after charge. Since the matter is very old, Learned Trial Court would do well to dispose of the case as early as possible. To save unnecessary delay parties are directed to appear before the Trial Court on 18th September, 2006 to take necessary instruction in the matter. 9. The Appeal is allowed. 10. LCR be sent back to the Trial Court forthwith. Appeal allowed. Final Result : Allowed