IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :07.04.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Crl.R.C.No.476 of 2009 Anandha Vadivelu .. Petitioner/Accused ..Vs.. Kannappan .. Respondent/Complainant Prayer:This Criminal Revision is filed under Sections 397 read with 401 Cr.P.C., against the order in Crl.R.P. No.29/2008 on the file of the III Additional Sessions Court, Puducherry dated 06.02.2009 against the order in C.C.No.480/2004 on the file of the Judicial Magistrate No.I, Puducherry on 28.12.2007. For Petitioner : Mr.V.Raghavachari For Respondent : Mr.S.Vediappan O R D E R This revision has been preferred against the order passed in Crl.R.P.No.29/2008, on the file of the III Additional Sessions Court, Puducherry, dated 06.02.2009, against the order in C.C.No.480/2004 on the file of the Judicial Magistrate No.I, Puducherry on 28.12.2007. 2.The respondent/complainant herein has preferred a complaint against the revision petitioner under Section 138 of Negotiable Instruments Act and the same was taken on file as C.C.No.480/2004. Since the revision petitioner has not paid the process and not taken the steps, the said complaint was dismissed under Section 204 (4) of Cr.P.C. Hence, the respondent/complainant has preferred the revision in Crl.R.P.No.29/2008 before the Additional Sessions Court, Puducherry. The learned Judge, allowed the petition, stating that the respondent herein, is entitled to restore the matter and issue summons to the accused and given a direction to the Judicial Magistrate No.I, Puducherry, to dispose the case in accordance with law, after giving an opportunity to both sides. https://hcservices.ecourts.gov.in/hcservices/ 3.The learned counsel for the petitioner/accused submitted that in the order passed in Crl.R.P.No.29/2008, the learned Additional Sessions Judge, in para-6 of his judgment, specifically mentioned that "the respondent/accused is having obtained a huge amount from the complainant and has issued a cheque knowing fully well that he has no sufficient funds in his account, the respondent/accused cannot be allowed to go away scot-free for minor flaws or on technical reasons." Without deciding the case on merit, the revisional Court made an observation that the revision petitioner/accused herein has borrowed huge amount and issued cheques and taking advantage of minor flaws. So the observation of the revisional Court is illegal and hence, he prayed for expunging the observation of the revisional Court and allowing this revision. 4.The learned counsel for the respondent/complainant submitted that it is true, his private complaint was dismissed stating that the steps have not been taken as per Section 204(4) Cr.P.C. and the said dismissal order cannot be treated as order of acquittal. So the respondent herein, is entitled to review the order by way of filing revision. So the revisional Court has considered this aspect in proper perspective and allowed Cr.R.P.No.29/2008 and directed the learned Judicial Magistrate to decide the matter in accordance with law. Hence, there is no illegality or irregularity in the order passed by the revisional Court. Hence, he prayed for dismissal of the revision. 5.Considered the rival submissions made on both sides. 6.The admitted facts are that the respondent/complainant herein has preferred a complaint under Section 138 of Negotiable Instruments Act, against the revision petitioner herein. When the matter was called, the complainant called absent and no representation for him and he has not paid the process. Hence the case was dismissed under Section 204(4) Cr.P.C. for not taking steps and the accused was discharged. Challenging the same, the respondent/complainant preferred a revision in Crl.R.P.No.29/2008, in which, the learned Additional Sessions Judge has considered various decisions, allowed the said revision. 7.Now it is appropriate to incorporate Section 204 Cr.P.C. 204.Issue of process: (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--- (a)a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a https://hcservices.ecourts.gov.in/hcservices/ warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section(1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87. 8.It is appropriate to consider the decision of Kerala High Court relied upon by the learned counsel for the respondent/complainant reported in 2007 Crl.L.J.1143 (Tom Thomas v. Abdul Lathief E.&another) in paragraph-6, it reads as follows: "6.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. Had the legislature intended that such order will also amount to an order of acquittal, coming within the purview of S.378 of the Code, there was absolutely no difficulty in using the word "acquit" instead of "dismiss" in S.204(4) of the Code. But in the absence of doing so, the only inference possible is that the legislature did not intend to "acquit' an accused for failure of the complainant to pay the requisite fee etc. This Court cannot treat an order of dismissal under S.204 (4) of the Code as order of acquittal, against the clear and unambiguous expressions contained in the provision. The order of dismissal of a complaint under S.204(4) is therefore, not appealable under S.378 of the Code. " As per the above decision, it has clearly proved that the order of dismissal under Section 204(4) Cr.P.C. is not an appealable order. https://hcservices.ecourts.gov.in/hcservices/ Only a revision is maintainable and the revisional Court considered this aspect and set aside the order. 9.But, however, I am of the view that the observation made by the learned Additional Sessions Judge is unwarranted and Hence it is hereby expunged. However, the respondent/complainant is entitled to prosecute the complaint. I do not find any illegality or irregularity in the order passed by the revisional Court. So the order of the revisional Court is hereby confirmed. 10.In fine, • The Criminal Revision is dismissed. Impugned order passed by the revisional Court is confirmed and that of the trial Court is set aside. • The learned Judicial Magistrate No.I, Puducherry is directed to dispose of C.C.No.480/2004 within three months from the date of receipt of copy of this order along with records. • The Registry is directed to send the records to the trial Court within 15 days from to-day. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kj To 1.III Additional Sessions Court Puducherry. 2. Thro The Principal Sessions Judge Puducherry 3.The Judicial Magistrate No.I Puducherry. 4.The Chief Judicial Magistrate Puducherry 5.The Record Keeper Criminal Section, High Court, Madras. 1 cc to Mrs. Anvar Sathath, Advocate, Sr. 25321 Crl.R.C.No.476 of 2009 UG (CO) kk 27/4 https://hcservices.ecourts.gov.in/hcservices/