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2015 DIGILAW 1755 (BOM)

Bhupendra Singh v. Saket Kumar

2015-07-31

S.K.PALO

body2015
ORDER : Shri L.L. Goswami, Advocate, for the petitioner. Shri Kuldeep Singh, Panel Lawyer, for the respondent/State. 2. Aggrieved by order dated 22-12-2014 passed in unregistered Criminal Complaint Case (Bhupendra Singh vs. Saket Kumar) under section 138 of Negotiable Instruments Act by learned JMFC, Vidisha, the complainant has preferred this revision under sections 397 and 401 read with section 482 of Criminal Procedure Code for setting aside the impugned order and to restore the criminal complaint case. 3. The factual matrix of the case is that the complainant/petitioner filed a complaint case under section 138 of Negotiable Instruments Act claiming dishonour of cheque issued by the respondent on 15-1-2008. The complaint case was pending since 7-3-2008. Despite orders, the complainant failed to pay process fee for summoning the accused/respondent since 30-12-2013. On 22-12-2014, the complainant/petitioner filed an application for issuing perpetual warrant against the accused/respondent. By the impugned order held that the criminal case is pending for more than 5 years and since 30-12-2013, the petitioner/complainant despite orders, did not pay the process fee nor he paid the process earlier and has filed an application for perpetual warrant, exercising the powers under section 204 (4) Criminal Procedure Code, the learned JMFC dismissed the complaint and acquitted the accused. 4. The complainant/petitioner assailed the impugned order on various grounds. As per the complainant, he deposited process fee earlier on several times. Because of inaction of the authorities responsible for execution of warrant, the warrant could not be executed though the matter is pending since 2008. The learned trial Court instead of providing an opportunity to the complainant/ petitioner benefited the accused by the impugned order. Before dismissal of the criminal complaint, no peremptory order has been passed. No warning, to the petitioner/complainant, was given and the complaint was dismissed acquitting the accused which has resulted the failure of justice. In the aforesaid facts and circumstances of the case, the mistake of the petitioner is a bona fide one. Requested to invoke the inherent jurisdiction of this Court, in the interest of justice, it is prayed to set aside the impugned order and to restore the criminal complaint case so that justice can be done with the petitioner. 5. In the aforesaid facts and circumstances of the case, the mistake of the petitioner is a bona fide one. Requested to invoke the inherent jurisdiction of this Court, in the interest of justice, it is prayed to set aside the impugned order and to restore the criminal complaint case so that justice can be done with the petitioner. 5. Section 204 (4) of Criminal Procedure Code reads as follows :- "Section 204 (1) xxxx (a) xxxxxxxx (b) xxxxxxxx (2) xxxxxxxx (3) xxxxxxxx (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. 6. Learned trial Court has acquitted the accused/respondent in the impugned order. Where a complaint is dismissed for non-payment of process fee etc. such an order cannot be treated as an order of acquittal. 7. Had the legislature intended that such order will also amount to an order of acquittal, coming within the purview of section 378 of the Code, there was absolutely no difficulty in using the word "acquit" instead of "dismiss" in section 204 (4) of the Code. The order of dismissal of a complaint under section 204 (4) is, therefore, not appealable under section 378 of the Code. 8. An order summoning the accused is not purely an interlocutory but is intermediate or quasi final and hence is open to revision, as has been held in Rajendra Kumar Sitaram Pandey vs. Uttam, AIR 1999 SC 1028 . 9. It is desirable that the Court may at the first instance issue summons for the appearance of the accused and may issue a warrant either bailable or non-bailable in case it is satisfied that despite efforts by the Police, the accused could not be traced may also issue warrant of arrest, if it is satisfied in the description of the accused that he has absconded and may not obey the summons. Since personal liberty is paramount the Court should not issue non-bailable warrant in the first instance unless the accused is charged with heinous crimes. The Court should in the first instance issue summons, then bailable warrant and in the last non-bailable warrant if the Court is satisfied that the accused is avoiding Court's proceedings intentionally. Since personal liberty is paramount the Court should not issue non-bailable warrant in the first instance unless the accused is charged with heinous crimes. The Court should in the first instance issue summons, then bailable warrant and in the last non-bailable warrant if the Court is satisfied that the accused is avoiding Court's proceedings intentionally. Inder Mohan Goswami vs. State of Uttaranchal, AIR 2008 SC 251 . 10. The golden principle is, "justice should not only be done but seen to be manifestly done," has to be borne in mind always. 11. In the present case, the complainant was not warned nor any peremptory order was passed. For failing to pay process fee the complainant will be put to inconvenience and the case would be thrown away without being decided on merits. 12. That being so, the petition is allowed. Impugned order dated 22-12-2014 is set aside. Unregistered Criminal complaint (Bhupendra Singh vs. Saket Kumar) under section 138 of Negotiable Instruments Act is restored. The complainant is directed to present himself before the learned trial Court on 17th August, 2015. He is directed to pay the necessary process fee within three days from his appearance failing which the complaint would render dismissal.