“13. In the instant case, we notice that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant’s crossexamination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1’s cross-examination in the above three complaint cases was adopted. There appears no specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section
