IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 CRL.A.No. 529 of 2005() ----------------------- ORDER IN CRL.LP.189/2005 Dated 07/03/2005. ST.808/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA. .................... APPELLANT/COMPLAINAT ------------------------ RAJU, S/O.KOLLIKKARA SUBRAMANIAN, MANAKULANGARA, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/ACCUSED AND STATE -------------------------------- 1. JAYAKUMAR, S/O.MUNNAKKAL NARAYANAN, MANAKULANGARA, MUKUNDAPURAM TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.ALEX M.THOMBRA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.529 of 2005 ---------------------------------------------------- Dated this the 5th day of September, 2011 Judgment This appeal is filed by the complainant in a case filed by him against the accused alleging offence under Section 138 of the N.I.Act. After conducting enquiry under Section 202 Cr.P.C., the case was taken on file by the learned Magistrate as C.C.No.638 of 2003. The learned counsel for the complainant submits that process fee was actually paid by the complainant in that case. The learned counsel further submits that the complainant's physical presence was ordered to be dispensed with and so the physical presence of the complainant was not required. It is further submitted that though it was originally numbered as C.C.No.638/03, it was subsequently re-numbered as S.T.No.808 of 2004, but it was done without notice to the complainant. Therefore, on the posting date, i.e., on 4.12.2004, the complainant was not present. The learned Magistrate dismissed the complaint under Section 204(4) Cr.P.C. on the ground that the process fee was not paid but, in fact the process fee was paid in C.C.No.613 of 2003. Whatever that be, an opportunity Crl.A.529/0 2 should have been given to the complainant. As such the order dismissing the complaint under Section 204(4) Cr.P.C. cannot be justified. It is true that the complainant should have filed a revision under Section 397 Cr.P.C. Anyway, now it is not necessary to go into that question as this court finds that the complainant should be given an opportunity to prosecute the matter. The respondent/accused though served with notice, did not enter appearance. In view of what is stated above, this appeal is allowed. The order passed by the learned Magistrate under Section 204(4) is set aside and the case is remanded to the Judicial First Class Magistrate Court, Irinjalakuda. Both parties will appear before that court on 30th September, 2011. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.529/0 3 Crl.A.529/0 4