A complaint cannot be dismissed for non-payment of process fees when the State has a duty to act after a warrant is issued following the accused's non-appearance.

ORDER

Dated this the 14th day of February, 2023 The revision petitioner is the complainant in S.T.No.1058 of 2019 on the file of the Judicial First Class Magistrate Court, Kunnamangalam. The compliant was filed alleging commission of 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 summons was returned as 'unclaimed' and the same was taken as valid service. In view of the first respondent's absence, even after service of summons, bailable warrant was issued against him and the case was posted on a particular date. On that day, finding that the petitioner was absent, had also 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 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 despite service of summons, compelling the court to issue warrant, then it is for the State to take necessary steps for taking out warrant and not the complainant. To buttress the argument, the decision inAyodya Printers Ltd v. State of Kerala and another [ 2015(4) KLJ 284] is pressed into service. It is submitted that the absence of the complainant on the posting date was due to a bona fide mistake in noting the date of posting and that, by itself, cannot be a reason to dismiss the complaint.

3. As rightly contended by the learned Counsel, while the responsibility of paying process for service of summons is that of the complainant. But, if the accused fails to appear even after service of summons, resulting the court issuing warrant for his/her production, then it becomes the State's responsibility to ensue production of the accused. The legal position is clear from 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 application from the complainant. It is clear from the provisions of Rule 274 of the Criminal Rules of Practice that the process fee envisaged in the said rule is the process fee referred to in Section 204 of the Code, if a party applies for the issue of process against the accused. The Kerala Court Fees and Suits Valuation Act, contains "Table of Process Fee (Criminal Court)" prescribing the process fee chargeable for issuing summons, warrant, proclamation, attachment etc. The said process-fees as prescribed by the rules shall be paid to issue process under Section 204 (1) of the Code. However, there is no provision under Section 87 of the Code requiring the complainant to pay process-fee for issuing warrant under Section 87 (b) o