IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 CRL.A.No. 1476 of 2004() ------------------------ ST.5571/2002 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... APPELLANT(S): COMPLAINANT: -------------------------- SUBHASH B.RAVU, PARTNER, MOHANA JEWELLERY, PALAYAM ROAD, KOZHIKODE. BY ADV. SRI.T.P.ELDHO RESPONDENT(S): ACCUSED; ----------------------- 1. K.V.VARGHESE, CHASHIER, STATE BANK OF INDIA, KOYILANDY BRANCH, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.B.V.JOY SANKER FOR R1 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1476 of 2004 ---------------------------------------------- Dated 9th September, 2010. J U D G M E N T The appellant is the complainant. He filed a complaint against 1st respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken up on file in the year 2002 and, summons was issued to the accused. On 6.10.2003, complainant was absent and process fee was not paid and hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge in this appeal. 2. Notice was served on accused-1st respondent and he also entered appearance through counsel. But, at the time of hearing of this appeal today, neither the appellant nor the 1st respondent was present or represented. 3. As per the memorandum of appeal, a contention is raised that the absence of the complainant on the crucial day ie., on 6.10.2003 was not wilful. According to appellant, he was suffering from back pain for the past three years and it was difficult for him to move and travel. A medical certificate was allegedly entrusted with his Crl.A. NO. 1476/04 2 counsel for making an application, but complainant's counsel failed to note the posting date in the diary and hence, he missed to note that the case was posted on 6.10.2003, it is contended. 4. It is also stated in the appeal memorandum that the accused had not entered appearance in court, even though summons was served on him. In such circumstances, the personal attendance of the complainant was not necessary, and the court ought to have granted one more opportunity, it is contended. 5. A reading of the impugned order shows that the accused was acquitted under Section 256(1) of the Code, for the reason that process fee is not remitted and the complainant was absent. The said order is extracted below : “Complainant absent. No representation. Process fee not remitted. Hence accused is acquitted u/s.256(1) Cr.P.C.” 6. From a reading of section 256(1) of the code, it is clear that if the complainant is absent , the Magistrate can acquit an accused, on the day appointed for “appearance” of the accused, if summons has been issued. But, the impugned order itself reveals that though summons was ordered, it was not issued. Section 61 of the Code lays down, how summons is to be issued. Form of summons is Crl.A. NO. 1476/04 3 available in Form no. 1 of Schedule II of the Code. A perusal of the said Form shows that the court has to to mention therein, the date on which the accused has to appear in court. It is the said day which can be referred to as the day appointed for appearance of the accused, as stated in section 256(1) of the Code. 7. If the accused is exempted by the court from personal appearance on such appointed day and the court adjourns the case to some other day for appearance of accused, such day also can be treated as the day appointed for “appearance” of accused. But, in cases in which summons is ordered but not issued for want of process fee, there will be no day appointed for “appearance” of accused in court, as referred to in section 256(1) of the Code. Hence, in cases in which process fee is not remitted, the accused shall not be acquitted, under section 256(1) of the Code, even if the complainant is absent. 8. I have held in Bristo Foods Pvt. Ltd v. Hariharan Nair, 2006(4)KLT 918, “if on issuance of summons to the accused, the Court adjourns the case to some other day and the complainant does not pay the requisite process fees within a reasonable time, the option left to the Court is to dismiss the complaint under S.204(4) and not to acquit the accused. Without issuance of process/summons to the accused, Crl.A. NO. 1476/04 4 the Court will not be appointing a day for his appearance in Court and hence no order of acquittal can be passed under S. 256(1) of the Code”. It is also held in Tom Thomas v. Abdul Lathief, 2006(4) KLT 1009, “when there is a specific provision to dismiss a complaint for non-payment of process fees etc., such an order cannot be treated as an order of acquittal. .... the legislature did not intend to “acquit” an accused for failure of the complainant to pay the requisite fee etc”. 9. It has to be borne in mind that an order of acquittal is different from an order of dismissal of a complaint and the consequences are also different. While an appeal may lie against order of acquittal, only a revision is maintainable against order of dismissal. Hence, the Magistrates shall take care to see that no accused is "acquitted" under Section 256(1) of the Code, in cases in which process fee is not paid. Even if the complainant is absent, the court shall not acquit the accused in a case in which summons is not issued for want of process fee. 10. But, the trial court committed a serious illegality in acquitting the accused under Section 256(1) of the Code, on the ground that the complainant failed to remit the process fee. In such circumstances, the order under challenge is unsustainable and the following order is Crl.A. NO. 1476/04 5 passed : (i) The impugned order is set aside. (ii) The court below shall take the case on file and dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 1.11.2010. The appeal is allowed. K.HEMA, JUDGE. tgs