Madras High Court
M.Balaganesan vs P.Antony Amalraj
Crl.R.C.(MD)No.1242 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.03.2025
Delivered on : 23.04.2025
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.1242 of 2024
M.Balaganesan ... Petitioner
Vs.
P.Antony Amalraj ... Respondent
PRAYER : Criminal Revision Petition filed under Section 397 r/w 401 of
Cr.P.C., to set aside the order, dated 07.07.2023 in C.C.No.180 of 2017 on
the file of the learned Judicial Magistrate, FTC(Magisterial Level)
Thoothukudi.
For Petitioner : Mr.V.Rajiv Rufus
For Respondent : Mr.R.Karunanidhi
ORDER
The Criminal Revision is directed against the order passed in C.C.No.180 of 2017, dated 07.07.2023 on the file of the learned Judicial Magistrate, FTC (Magisterial Level) Thoothukudi. 1/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024
2.The petitioner/complainant has filed the complaint under Section 200 Cr.P.C., against the respondent/accused for the alleged offence under Section 138 r/w 142 of Negotiable Instruments Act.
3.The case of the petitioner/complainant is that the respondent/accused borrowed a sum of Rs.2,00,000/- from the complainant on 25.02.2015 to meet out his urgent family expenses and executed a promissory note agreeing to repay the same with interest at the rate of 18% per annum; that the respondent has again borrowed a sum of Rs.3,00,000/- and executed another promissory note, dated 26.10.2015 agreeing to repay the same with interest at 18% per annum; that since the accused did not pay the amounts, the petitioner's repeated demands for return of the said amount ended in vain; that when the petitioner requested the accused for immediate settlement, the respondent issued a cheque, dated 27.05.2017 drawn on Indian Bank, Melur for Rs.6,42,500/-; that the complainant presented the cheque for collection through his bankers Canara Bank, Nanthagopalapuram, Thoothukudi on 03.06.2017, but the same was returned for want of sufficient funds in the bank account of the accused; 2/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024 that the petitioner has then sent a legal notice, dated 27.06.2017 to the respondent demanding the amount covered by the cheque; that the respondent having received the legal notice on 29.06.2017, has neither sent any reply nor made any payment and that therefore, the petitioner was constrained to lodge the above complaint.
4.It is evident from the records that since the respondent has failed to appear before the concerned Court, bailable warrant came to be issued on 14.10.2022; that subsequently NBW came to be issued on 10.03.2023 against the respondent and that despite several opportunities, the complainant has failed to pay the necessary process fee for issuance of NBW and that on 07.07.2023 as there was no representation for the petitioner and the petitioner was also called absent, the learned Magistrate has proceeded to dismiss the case under Section 204(4) of Cr.P.C., for non payment necessary process fee. Challenging the above dismissal judgment, the present revision came to be filed.
5.The learned counsel for the petitioner would submit that the trial Court, without hearing the complainant side and in violation of principles 3/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024 of natural justice, has passed the impugned order, dismissing the complaint; that the petitioner was suffered by lot of losses over the years financially and physically and as a result of which, the petitioner depressed by illness for more than a year and hence, he was unable to contact his counsel; that subsequently, the petitioner was shocked to know that his case had been dismissed for not filing of process on 16.06.2023 and that therefore, the petitioner was constrained to file the present revision, challenging the dismissal of the complaint.
6. The learned counsel for the respondent would submit that since the appeal was dismissed for default, the same would only amount to acquittal of the accused and that therefore, the revision challenging the dismissal of the complaint for default is legally not maintainable and that therefore, the revision is liable to be dismissed.
7. The learned counsel for the respondent would rely on a decision of Hon'ble Supreme Court in the case of V.K.Bhat vs. G.Ravi Kishore and another reported in (2016) 13 SCC 243; wherein, the complainant therein challenging the dismissal, filed the revision before the Metropolitan 4/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024 Sessions Judge and the said revision came to be dismissed on the ground of absence of complainant; that the complainant has filed another revision before the same Metropolitan Sessions Judge, but that time, he allowed the revision and set aside the dismissal order; that when an application was filed before the High Court alleging that the second revision was not maintainable, the High Court has held that the order passed by the Metropolitan Sessions Judge was not illegal and that when the same was challenged before the Hon'ble Supreme Court, it was held that in the facts of the case, the dismissal of the complaint for non-appearance of the complainant amounts to acquittal as contemplated in Section 256 of Code of Criminal Procedure and on that basis, set aside the order.
8.But in the case hand, the complaint was not dismissed for default under Section 256 of Cr.P.C., but under Section 204(4) of Cr.P.C. The learned counsel for the petitioner would rely on a decision of this Court in the case of Anandha Vadivelu Vs. Kannappan in Crl.RC.No.476 of 2009, dated 07.04.2011, wherein also a complaint filed under Section 138 of Negotiable Instruments Act came to be dismissed for non payment of process fee and this Court by referring to the decision of Kerala High 5/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024 Court in the case of Tom Thomas Vs.E. Adbul Lathief and another reported in 2007 Crl.L.J.1143, has held that the order of dismissal under Section 204(4) of Cr.P.C., is not an appealable order and only a revision is maintainable. It is necessary to refer the following passage in the Tom Thomas's case above referred.
"6.When there is a specific provision to dismiss a complaint for non-payment of process fees etc., such an order cannot be treated as an order of acquittal. Had the legislature intended that such order will also amount to an order of acquittal, coming within the purview of S.378 of the Code, there was absolutely no difficulty in using the word "acquit" instead of "dismiss" in S.204(4) of the Code. But in the absence of doing so, the only inference possible is that the legislature did not intend to "acquit' an accused for failure of the complainant to pay the requisite fee etc. This Court cannot treat an order of dismissal under S.204(4) of the Code as order of acquittal, against the clear and unambiguous expressions contained in the provision. The order of dismissal of a complaint under S.204(4) is therefore, not appealable under S.378 of the Code. "
9. In the present case also, as already pointed out, the learned Magistrate, since necessary process fee was not paid for issuance of non bailable warrant, has passed the impugned order, dismissing the complaint under Section 204(4) of Cr.P.C, and since it is a dismissal under Section 6/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024 204(4) Cr.P.C., the same cannot be treated as an order of acquittal. Considering the legal position above referred, this Court has no hesitation to hold that the Criminal Revision is maintainable and the objections with regard to the maintainability raised by the respondent side cannot be sustained.
10. The learned counsel for the petitioner would submit that the petitioner may be given one more opportunity to prosecute the complaint as he had initiated the proceedings under Section 138 of NI Act in respect of dishonored cheque for Rs.6 lakhs.
11.It is pertinent to note that the above case is pending from 2017 and since necessary process was not paid, the impugned order of dismissal came to be passed on 07.07.2023. Considering the above, this Court has no other option, but to say that the petitioner is at fault. But at the same time, taking note of the facts and circumstances and the dismissal under Section 204(4) of Cr.P.C., this Court is of the view that the petitioner should be given one more opportunity to prosecute the complaint and as such, the impugned order is liable to be set aside. Since the respondent/accused has 7/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm ) Crl.R.C.(MD)No.1242 of 2024 entered into appearance before this Court, the trial Court is to be directed to proceed with the proceedings and dispose of the case within the time stipulated.
12. In the result, the Criminal Revision Case is allowed and the impugned order, dated 07.07.2023 in C.C.No.180 of 2017 on the file of the learned Judicial Magistrate, FTC(Magisterial Level) Thoothukudi, is set aside. The learned Judicial Magistrate, FTC (Magisterial Level) Thoothukudi, is directed to restore the complaint in C.C.No.180 of 2017 to his file and the petitioner as well as the respondent are directed to appear before the learned Magistrate on 22.05.2025 and after appearance, the learned Magistrate is directed to proceed with the proceedings and dispose of the case within a period of three months from the date of their appearance.
23.04.2025 Note : Issue order copy on 09.05.2025.
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
das
8/9
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm )
Crl.R.C.(MD)No.1242 of 2024
K.MURALI SHANKAR,J.
das
To
1.The Judicial Magistrate, FTC(Magisterial Level) Thoothukudi.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Pre-delivery order made in Crl.R.C.(MD)No.1242 of 2024 Dated: 23.04.2025 9/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/05/2025 04:47:43 pm )