nor any peremptory order was passed. For failing to pay
process fee the complainant will be put to inconvenience
and the case would be thrown away without being decided
on merits.
MADHYA PRADESH HIGH COURT
CRR.289/2015
(Bhupendra Singh Vs. Saket Kumar)
Dated;31.07.2015
Aggrieved by order dated 22.12.2014 passed in
unregistered Criminal complaint Case (Bhupendra Singh Vs.
Saket Kumar) under Section 138 of Negotiable Instruments
Act by learned JMFC, Vidisha, the complainant has preferred
this revision under Sections 397 and 401 read with Section
482 of Cr.P.C. for setting aside the impugned order and to
restore the criminal complaint case.
The factual matrix of the case is that the
complainant/petitioner filed a complaint case under Section
138 of Negotiable Instruments Act claiming dishonour of
cheque issued by the respondent on 15.01.2008. The
complaint case was pending since 07.03.2008. Despite
orders, the complainant failed to pay process fee for
summoning the accused/respondent since 30.12.2013. On
22.12.2014, the complainant/petitioner filed an application
for issuing perpetual warrant against the accused/
respondent. By the impugned order held that the criminal
case is pending for more than 5 years and since
30.12.2013, the petitioner/complainant despite orders, did
not pay the process fee nor he paid the process earlier
and has filed an application for perpetual warrant, 2 CRR.289/2015
exercising the powers under Section 204(4) Cr.P.C., the
learned JMFC dismissed the complaint and acquitted the
accused.
The complainant/petitioner assailed the impugned
order on various grounds. As per the complainant, he
deposited process fee earlier on several times. Because of
inaction of the authorities responsible for execution of
warrant, the warrant could not be executed though the
matter is pending since 2008. The learned Trial Court
instead of providing an opportunity to the complainant/
petitioner benefited the accused by the impugned order.
Before dismissal of the criminal complaint, no peremptory
order has been passed. No warning, to the
petitioner/complainant, was given and the complaint was
dismissed acquitting the accused which has resulted the
failure of justice. In the aforesaid facts and circumstances
of the case, the mistake of the petitioner is a bonafide one.
Requested to invoke the inherent jurisdiction of this Court,
in the interest of justice, it is prayed to set-aside the
impugned order and to restore the criminal complaint case
so that justice can be done with the petitioner.
Section 204(4) of Cr.P.C. reads as follows:-
“S.204 (1) xxxx
(a) xxxxxxxx
(b) xxxxxxxx
(2) xxxxxxxx
(3) xxxxxxxx 3 CRR.289/2015
(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.
Learned Trial Court has acquitted the
accused/respondent in the impugned order. Where a
complaint is dismissed for non-payment of process fee 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 Section 378 of the Code, there was absolutely no
difficulty in using the word “acquit” instead of “dismiss” in
Section 204 (4) of the Code. The order of dismissal of a
complaint under Section 204(4) is, therefore, not
appealable under Section 378 of the Code.
An order summoning the accused is not purely an
interlocutory but is intermediate or quasi final and hence is
open to revision, as has been held in “Rajendra Kumar
Sitaram Pandey Vs. Uttam AIR 1999 SC 1028”.
It is desirable that the Court may at the first instance
issue summons for the appearance of the accused and may
issue a warrant either bailable or non-bailable in case it is
satisfied that despite efforts by the Police, the accused
could not be traced may also issue warrant of arrest, if it is
satisfied in the description of the accused that he has
absconded and may not obey the summons. Since
personal liberty is paramount the Court should not issue
non-bailable warrant in the first instance unless the
accused is charged with heinous crimes. The Court should
in the first instance issue summons, then bailable warrant
and in the last non-bailable warrant if the Court is satisfied
that the accused is avoiding Court's proceedings
intentionally. (Inder Mohan Goswami V. State of
Uttaranchal, AIR 2008 SC 251)
The golden principle is, “justice should not only be
done but seen to be manifestly done,” has to be borne in
mind always.
In the present case, the complainant was not warned
nor any peremptory order was passed. For failing to pay
process fee the complainant will be put to inconvenience
and the case would be thrown away without being decided
on merits.
That being so, the petition is allowed. Impugned
order dated 22.12.2014 is set-aside. Unregistered Criminal
complaint (Bhupendra Singh Vs. Saket Kumar) under
Section 138 of Negotiable Instruments Act is restored. The
complainant is directed to present himself before the
learned Trial Court on 17th August, 2015. He is directed to
pay the necessary process fee within three days from his 5 CRR.289/2015
appearance failing which the complaint would render
dismissal.
(S.K. Palo)
mani Judge
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