Dismissal of a complaint for non-appearance of the complainant equates to acquittal, which is appealable under Section 378(4) of the Cr.P.C.

1. 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 S.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 S.204(4) of Cr.P.C. S.204(4) of Cr.P.C is extracted below:
"204. Issue of process. - (1) 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 S.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 S.203 of Cr.P.C as well, after completion of enquiry provided under S.200 of Cr.P.C in a complaint case. Apart from S.203 and