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2015 DIGILAW 1058 (KER)

BANK OF INDIA v. STATE OF KERALA

2015-08-04

K.HARILAL

body2015
ORDER : K. HARILAL, J. 1. The revision petitioner is the complainant in C.C. No.1513 of 2010 on the files of the Additional Chief Judicial Magistrate's Court (EO), Ernakulam. The order passed under Section 204(4) of the Cr.P.C. dismissing the said complaint is under challenge in this Revision Petition. 2. Heard the learned counsel for the revision petitioner. 3. Going by the impugned order, it is seen that on 26.6.2012, when the case was taken up for hearing, the complainant was absent and there was no representation for the complainant. So also, in spite of repeated directions to serve the copy of the complaint to the learned counsel for the accused, the said direction was also not complied with. In that context, the court below dismissed the complaint for non-prosecution. 4. The learned counsel for the petitioner pointed out that after the issuance of the process and appearance of the accused there under, no complaint can be dismissed under Section 204(4) of the Cr.P.C., but the accused can be acquitted under Section 256(1) of the Cr. P.C. for non-appearance of the complainant. On a close reading of Sections 204(4) and 256(1) of the Cr.P..C. in juxtaposition, I find that the submission made by the learned counsel for the petitioner is correct. According to Section 204(4) of the Cr.P.C., when any process-fees or other fees are payable and if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint under Section 204(4) of the Cr.P.C.; but according to Section 256(1) of the Cr.P.C. if the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, if the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. In the instant case, the summons had been issued and the accused appeared before the court. Therefore, I find that the court below ought to have acquitted the accused under Section 256(1) of the Cr.P.C. when the accused appeared through the counsel and neither the complainant nor the counsel was present before court, on the date of hearing. The dismissal of the complaint under Section 204(4) of the Cr.P.C. is illegal, improper and unsustainable under law. 5. The dismissal of the complaint under Section 204(4) of the Cr.P.C. is illegal, improper and unsustainable under law. 5. In the above view of the matter, the impugned order under challenge is set aside and the learned Magistrate is directed to restore the complaint on the files and proceed in accordance with law. The parties shall appear before the Trial Court on 14.9.2015. 6. This Revision Petition is allowed.