IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 15 of 2009() ---------------------------- ST.2935/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): COMPLAINANT: ----------------------------------------------------------- SHRIRAM TRANSPORT FINANCE CO.LTD, (FORMERLY KNOWN AS SHRIRAM INVESTMENTS LTD)HAVING ITS REGISTERED OFFICE AT 123,ANGAPPA NAICKEN STREET, CHENNAI, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.VENUGOPALAN P.T., LEGAL CONSULTANT, M/S.SHRIRAM TRANSPORT FINANCE CO.LTD. SREEPADAM BUILDING,CHEROOTY ROAD, CALICUT. BY ADV. SRI.RAJESH NAMBIAR RESPONDENT(S): STATE & ACCUSED: ---------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M.V.PRAKASHAN, S/O.T.V.BALAN, METHALEVEEDU, CHANDAPURA, KADANNAPALLY P.O. KANNUR. R2 BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO. 15 OF 2009 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the complainant in S.T.C.2935/2006 on the file of Judicial First Class Magistrate-I, Kannur. Complaint was filed against second respondent/accused alleging that he committed offence under Section 138 of Negotiable Instruments Act. Learned Magistrate took cognizance of the offence on 19/5/2006 and issued summons to the accused. Summons sent to the accused was returned unserved. It was repeated on several occasions. On 29/5/2007 Magistrate directed issuance of non bailable warrant. It was returned unexecuted stating that second respondent left India. On 6/8/2007 Magistrate directed revision petitioner to furnish present address to take non bailable warrant. It was adjourned to several occasions and finally on 28/7/2008 as present address of the accused was not furnished, complaint was dismissed under Section 204 of Code of Criminal Procedure. The order is challenged in this revision CRRP 15/09 2 petition. 2. Learned counsel appearing for revision petitioner was heard. 3. Argument of the learned counsel is that though a complaint could be dismissed under sub section 4 of Section 204, it could only be for the failure of the complainant to pay process as directed by the court and when revision petitioner had paid the process and taken summons and non bailable warrant was issued as against first respondent, who is not in India learned Magistrate should not have dismissed the complaint under Section 204 and even if second respondent is not available and his presence could not be procured as he is out of India, Magistrate should have transferred the case to long pending register as provided under Rule 15 of Criminal Rules of Practice and dismissal of the complaint is illegal. 4. Records show that learned Magistrate finding that there is sufficient grounds for proceeding against second respondent, issued process as provided under Sub Section 1 of Section 204 on 19/5/2006. It is also clear from the records that revision petitioner had produced the process necessary for issuing summons. But summons could not be served on second respondent as he left CRRP 15/09 3 India. It is in such circumstances, learned Magistrate directed issuance of non bailable warrant. Steps was taken and non bailable warrant was issued. It was returned as second respondent is out of India. It is thereafter revision petitioner was directed to produce present address of the second respondent. Evidently it is not for issuing summons in that address, but for issuing non bailable warrant. Even if revision petitioner had furnished the address non bailable warrant could not have been executed. As rightly pointed out by the learned counsel, if presence of the accused could not be procured within a reasonable time as he is out of India proper course is to transfer the case to the long pending register as provided under Rule 15 of Criminal Rules of Practice and he should not have dismissed the complaint. In such circumstances, petition is allowed. The order is set aside. S.T.2935/2006 is restored to file of Judicial First Class Magistrate-I, Kannur. Learned Magistrate is directed to proceed with the complaint in accordance with law. Send back records. M.SASIDHARAN NAMBIAR, JUDGE. uj.