IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 15^TH DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 CRL.REV.PET NO. 757 OF 2020 AGAINST THE ORDER/JUDGMENT ST 1056/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KUNNAMANGALAM REVISION PETITIONER/COMPLAINANT ANEESH R AGED 25 YEARS SON OF RAJU, ASARIKANDY VEEDU, NAIRKUZHI P.O, NIT, POOLAKODE, KOZHIKODE-673 601 (KUNNAMANGALAM POLICE STATION LIMIT).

BY ADVS.

JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENTS/ACCUSED AND STATE

1 A.P.MUHAMMED AGED 38 YEARS SON OF ABDUL JALEEL, 16/622 A, ASSI VEETTIL, KOZHIKODE TALUK NAGARAM AMSOM-673 001 (TOWN POLICE STATION LIMIT).

2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 OTHER PRESENT:

PP M.C.ASHI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O R D E R

Dated this the 15^th day of February, 2023 The revision petitioner is the complainant in S.T.No.1056 of 2019 on the files of the Judicial First Class Magistrate Court, Kunnamangalam. The complaint was filed alleging commission of the offence under Section 138 of the Negotiable Instruments Act by the first respondent. The trial court took cognizance of the offence and issued summons to the first respondent. The petitioner having failed to appear despite service of summons, bailable warrant was issued against him and the case was adjourned. On the next posting date, finding that the petitioner was absent and had not paid process for taking out bailable warrant to the first respondent, the complaint was dismissed as per Section 204 (4) of Cr.P.C. Hence this criminal revision petition.

2. Learned Counsel for the revision petitioner contended that the trial court committed a patent illegality in dismissing the complaint for non-remittance of process fees. If the accused fails to appear after receipt of summons, thereby compelling the court to issue warrant, then it is for the State to take necessary steps for taking out warrant. To buttress the argument, the decision in Ayodya Printers Ltd v. State of Kerala and another [2015(4) KLJ 284] is pressed into service. It is submitted that, absence of the complainant on the posting date was due to a bona fide mistake in noting the date and absence of the complainant, by itself, cannot be a reason to dismiss the complaint.

3. As rightly contended by the learned Counsel, while the responsibility of paying process fees for issuing summons is of the complainant, fees for issuance of warrant due to non-appearance of the accused even after service of summons is the State's responsibility. The legal position is no res integra in view of the erudite exposition at paragraph 10 of Ayodya Printers Ltd, (supra), extracted hereunder;

“10. It is true that there are rules prescribing fees for issuing summons, warrant etc. Rule 273 of the Criminal Rules of Practice, Kerala, provides that process fee shall be leviable at the rates prescribed from time to time under the Kerala Court Fees and Suits Valuation Act, 1959. Rule 274 of the Criminal Rules of Practice, Kerala, provides that the parties applying for the issue of process shall file a batta memo containing the name, residence and full address of the person on whom the process is to be served together. with the fees for such service. There can be no dispute that the word "person" referred to in the above rule includes an accused as well. Rule 274 of the Criminal Rules of Practice is applicable only when a party applies for the issue of process. In every case instituted upon a complaint, the complaint itself is an application for the issue of process against the accused. However, once the process issued is duly served on the accused, the question of applying again for the issue of process by the complainant does not normally arise. Thereafter, the courts used to resort to coercive steps to procure the presence of the accused before the court, without any further a