Point of Law: Dishonour of cheque – Acquittal -order impugned would be read as an order of acquittal under Section 256 of Cr.P.C. Thus appeal would lie against the said order. As such this appeal is perfectly maintainable before this Court with leave.

JUDGMENT :

The order in S.T.No.387 of 2004 on the file of the Judicial First Class Magistrate Court, Kattappana dated 09.02.2007 is under challenge in this appeal at the instance of the original complainant before the Magistrate Court. The respondents herein are the accused before the court below as well as the State of Kerala represented by the Public Prosecutor.

2. The parties in this appeal will be referred herein as complainant and accused for convenience.

3. Facts: The complainant herein launched prosecution alleging commission of offence under Section 138 of the Negotiable Instruments Act by the accused on the allegation that the cheque for Rs.2 lakh issued by the accused on 10.08.2003 for repayment of a legal enforceable debt was dishonoured for want of funds. Though the complainant issued demand notice, the accused did not pay the amount. Accordingly, the court below took cognizance of the offence and secured the presence of the accused.

4. While so, as per order dated 09.02.2007, the learned Magistrate dismissed the complaint. The short order is as extracted below:

Matter not settled. Complainant is absent. Accused absent. Complainant absent, applied. Application is rejected. Therefore complaint is dismissed for default.

5. Aggrieved by the said dismissal, the complainant filed this appeal with leave application. Leave already granted.

6. Heard the learned counsel for the complainant as well as the accused and the learned Public Prosecutor.

7. It is submitted by the learned counsel for the complainant that the absence of the complainant on 09.02.2007 before the court below was not willful. It is submitted further that since the complainant was suffering from dysentery and vomiting, he could not attend the court and in that regard an application along with medical certificate was filed before the magistrate court. But the learned Magistrate dismissed the excuse petition and consequently the complaint also was dismissed. The learned counsel for the complainant sought to set aside the order and remand back the matter before the trial court facilitating trial of the matter on merits.

8. The learned counsel for the accused opposed the said contention. But the learned counsel failed to justify the contention in a case where the complaint was dismissed for non appearance of the complainant.

9. Now the question arises for consideration is whether the order is liable to be set aside facilitating opportunity to the complainant herein to prosecute the matter on merits.

10. Before answering the question, the legal issue involved in this matter required to be addressed. To be explicit, two queries required to be addressed, viz.

1. Whether an appeal would lie against the order under challenge?

2. Is the order impugned is a revisable order?

11. In this context it is pertinent to decide the remedies available to a complainant when a complaint got dismissed. Dismissal of a complaint is dealt under Section 204(4) of Cr.P.C. Section 204(4) of Cr.P.C. is extracted below:

“204: Issue of process:--(1) xxxxxx xxxx xxxx xxxx xxxx

(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.

xxxx xxxx xxxx”

Going by Section 204(4) of Cr.P.C, the Magistrate may dismiss the complaint if process fees or other fees failed to be paid by the complainant.

12. It is true that dismissal of a complaint is dealt under Section 203 of Cr.P.C as well, after completion of enquiry provided under Section 200 of Cr.P.C in a complaint case. Apart from Section 203 and 204(4) of Cr.P.C, dismissal of a complaint for non appearance or death of a complainant is not provided anywhere in the Code. However, the course of action available to a Magistrate in the event of non appearance or death of a complainant has been stipulated in Section 256 of Cr.P.C. For clarity, the said provision is extracted as under:

“25