ORDER

This criminal original petition has been filed by the petitioner /

appellant to grant leave to file Criminal Appeal as against the order dated 06.10.2021 passed by the learned Judicial Magistrate Court, Fast Track Court (Magistrate Level), Tiruvannamalai in CC.No.26 of 2020.

2. The petitioner filed a complaint alleging offence under section

138 of Negotiable Instruments Act before the Magistrate Court. It was dismissed under Section 204(4) of the Criminal Procedure Code since the petitioner failed to take steps after issuing direction to send a summons to the accused. The petitioner has filed appeal against the said order under Section 378 of the Criminal Procedure Code treating it as an order of acquittal. He also filed this petition for special leave.

3. The impugned order passed under Section 204 of the Cr.P.C.

can be extracted herein.

"The complainant submits that accused is a friend to him and well known to the complainant. Based on the said acquaintance accused borrowed Rs.9,00,000/- on 30.07.2016 for his urgent family expenses and assured to repay within one month. The accused has issued a State Bank of India, Erode Branch cheque bearing No.910919 dated 30.08.2016.

2. The complainant presented the said cheque for collection on 30.08.2016 in his banker State Bank of India, Tiruvannamalai Branch and the cheque was returned with a reason "Funds Insufficient" and return memo issued by the bank on 30.08.2016. The complainant issued a legal notice on 02.09.2016 through his counsel and served acknowledgement card received on 14.09.2016. The accused neither replied nor settled the amount. Therefore the accused has committed the offence punishable under Section 138 of NI Act. The complainant filed cheque, return memo, legal notice and returned RPAD cover. Hence, the complaint is filed.

3. Prima facie case made out as against the accused and the case was taken on file in the year 2016 in J.M.No.II Court, Tiruvannamalai and summon has been issued to accused. Accused summon sent through RPAD was returned with an endorsement "Left". Hence, court again issued fresh summons to the accused. Subsequently, the case transferred to this Court in the year of 2020 and renumbered as CC.No.26 of 2020. Further, complainant absent on the following dates 20.07.2020, 22.09.2019, 19.11.2020, 20.01.2021, 23.03.2021, 03.09.2021 and process also not paid to issue fresh summons to accused. Sufficient opportunity given to complainant to pay the process to issue fresh summons to accused. On 06.10.2021 also complainant absent, complainant counsel absent and process also not filed to issue fresh summon to accused.

In the result, the complaint is dismissed for non payment of process under Section 204(4) of Cr.P.C. and non prosecution under Section 256 of Cr.P.C. Accused is acquitted."

4. It is clear from the above order that the complaint was dismissed under Section 204 of the Criminal Procedure Code. The relevant portion of Section 204 of the Criminal Procedure Code reads as follows:

204. Issue of process.

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons- case, he shall issue his summons for the attendance of the accused, or (b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.

(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 rea