IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 14^TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 CRL.REV.PET NO. 699 OF 2020 ORDER IN ST 1057/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM REVISION PETITIONER/S:

1 C.P.VIPIN KUMAR AGED 24 YEARS S/O.PRASANTHAN, CHULLIKADU VEEDU, NAIRKUZHI P O, NIT, POOLAKODE, KOZHIKODE - 673601, (KUNNAMANGALAM POLICE STATION LIMIT)

2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.

BY ADV JACOB ABRAHAM RESPONDENT/S:

A.P.MUHAMMED AGED 38 YEARS S/O. ABDUL JALEEL, 16/622 A, ASSI VEETTIL, KOZHIKODE TALUK NAGARAM AMSOM - 673001, (TOWN POLICE STATION LIMIT)

OTHER PRESENT:

PP M.C.ASHI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

Dated this the 14^th day of February, 2023 The revision petitioner is the complainant in S.T.No.1057 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 in Ayodya 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