Bright Glass Traders v. T.M. Hardwares, Saji M., Sudhish, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939** **Crl.Rev.Pet.No. 953 of 2017 ()** **-------------------------------** **AGAINST THE ORDER IN ST 424/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR, DATED 12-05-2017.** **-----------------** ## **REVISION PETITIONER(S)/COMPLAINANT:** **-------------------------------------------------------------** **BRIGHT GLASS TRADERS, REPRESENTED BY ITS PROPRIETOR, RAJENDRA KUMAR PUROHITH, S/O. UDAYA KRISHNA PUROHITH, AGED 50 YEARS, THURUTHI ROAD, PAPPINISERRI P.O., KANNUR.** ## **BY ADV. SRI.K.RAJESH SUKUMARAN** ## **RESPONDENT(S)/ACCUSED/STATE:** **----------------------------------------------------** ## **1. T.M.HARDWARES,** **SBP V/507,506, MOOZHAYIL COMPLEX, SULTHAN BATHERI P.O., WAYANAD, PIN - 673 592.** ## **2. SAJI.M.,** **PARTNER, T.M. HARDWARES, SBP V/507, 506, MOOZHAYIL COMPLEX, SULTHAN BATHERI P.O., WAYANAD, PIN - 673 592.** ## **3. SUDHISH,** **PARTNER, T.M. HARDWARES, SBP V/507, 506, MOOZHAYIL COMPLEX, SULTHAN BATHERI P.O., WAYANAD, PIN - 673 592.** **4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R4 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **Crl.Rev.Pet.No. 953 of 2017 ()** **------------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURE** **--------------------------------------** **ANNEXURE A1:- CERTIFIED COPY OF THE ORDER DATED 12.5.2017 IN STC 424/2016 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1,KANNUR.** ## **RESPONDENTS ANNEXURES - NIL** **--------------------------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS** ## **ALEXANDER THOMAS, J. ----------------------------** ## **Crl.R.P.No. 953 of 2017** **----------------------------** Dated this the 26[th] day of September, 2017 ## **ORDER** The order under challenge in this revisional proceedings is the one rendered on 12.05.2017 by the trial court concerned (Judicial First Class Magistrate Court-I, Kannur), whereby the complaint of the petitioner in S.T.C.424 of 2016 has been dismissed by virtue of the enabling provisions contained in Sec.204(4) of the Cr.P.C as the petitioner had not taken steps to pay process fee for service of warrant to the accused. The matter in issue is covered fully in favour of the petitioner by the dictum laid down by this Court in the decision in **Ayodya Printers Ltd.** v **. State of Kerala** reported in **2015(4) KLT 251** (order dated 22.09.2015 in Cr.R.P.No.1003/2015). Accordingly, notice to respondents 1 to 3 (accused) are dispensed with. 2. Heard Sri.K.Rajesh Sukumaran, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Paletty, learned Public Prosecutor appearing for R2, State. 3. The petitioner herein is the complainant alleging offence punishable under Sec.138 of the Negotiable Instruments Act, wherein the respondents 1 to 3 have been arrayed as accused Crl.R.P.No. 953 of 2017 2 therein. It is averred that the complaint was originally filed before the Judicial First Class Magistrate Court-II, Kannur on 31.05.2013 and later in tune with the judgment dated 14.08.2014 rendered by the Apex Court in the case in **Dasrath Rupsingh Rathod** v **. State of Maharashtra and others** reported in **2014 (9) SCC 129** , the said trial court had returned the complaint to the complainant for representing the same before the proper court. Accordingly, the complaint was re presented on 27.09.2014 before the Judicial First Class Magistrate Court-I, Sulthan Bathery, Wayanad district. Thereafter in tune with the amendments made to the provisions contained in the Negotiable Instruments Act by inserting Sec.142(2) and Sec.142A thereof with effect from 15.06.2015, the complaint was again returned to be presented before the proper court and the case was transferred to the Judicial First Class Magistrate Court-I, Kannur. The case was later called on 16.04.2016 on which day summons was ordered to the accused and case was posted to 1.07.2016. Accordingly, the petitioner had paid Batta on 27.04.2016 for taking out summons on the accused. On 1.07.2016, there was no sitting and the case was notified to 28.11.2016 and on that day the complainant was represented and as the accused was absconding summons was repeated and the case was posted to 13.01.2017. Accordingly the complainant’s counsel produced the ## Crl.R.P.No. 953 of 2017 3 Cover on 5.12.2016. Later on 13.01.2017 non bailable warrant was issued to the accused and the case was posted to 24.03.2017. On 24.03.2017, the complainant was absent and was represented by counsel and non bailable warrant was issued to all the accused and the case was adjourned to 12.05.2017. On 12.05.2017 though the complainant was absent, he was represented by the counsel and on which day the complaint was dismissed as per the impugned order dated 12.05.2017 on the ground that the petitioner had not taken steps to pay process fee for serving non bailable warrant against the accused etc. It has been held by this Court in the decision in **Ayodya Printers Ltd** v **. State of Kerala reported in 2015(4) KLT 251** , that where a complainant in a case like this pays process fee for service of summons from the accused and due to nonappearance of the accused, if later the trial court issues warrant for enforcing the appearance of the accused, then in such a situation, there is no obligation for the complainant to pay the process fee for service of warrant and that such warrant is to be effected at the expenditure of the State. It will be profitable to refer paras 15 and 16 of the decision of this Court in Ayodya Printers Ltd's case (supra) which reads as follows. > _“15. The above discussion would make it clear that the court has the power to direct the complainant to pay process-fees or other fees, as prescribed under the Rules, for the purpose of issuing summons or warrant against the accused under S.204(1) of the Code. If the accused fails to appear before the_ ## Crl.R.P.No. 953 of 2017 4 _court as directed in the summons and the summons is proved to have been duly served and no reasonable excuse is offered for such failure, the court may issue a warrant for his arrest under S.87(b) of the code and not under S.204(1)(b) of the Code. The mandate under S.204 (4) of the Code to pay process-fees or other fees payable under any law for the time being in force and the discretion of the court to dismiss the complaint if process-fees are not paid within a reasonable time, are not applicable to the provisions of S.87 of the Code in view of the provisions of sub-s.(5) of S.204 of the Code. That apart, there is no provision under Section 87 of the code requiring the complainant to pay process-fee for issuing warrant under Section 87(b) of the Code. Therefore, the courts should not require the complainant to pay process-fee for issuing warrant under Section 87(b) of the Code and consequently, the court should not dismiss the complaint in such cases under S.204(4) of the Code for non-payment of process-fee. It is reiterated that if the accused abstains after the service of summons or after his appearance before the Court, the warrant will be issued under S.87(b) of the Code which requires no process fee to be paid by the complainant. The steps to be initiated under Ss.82 and 83 of the Code in such cases are in continuation of the above said proceedings and consequently, the steps initiated in such cases do not require any process fee to be paid by the complainant. Therefore, the Court cannot dismiss the complaint under S.204(4) of the Code for non-payment of process-fee in such cases. On the other hand, if the warrant is issued prior to the service of summons or appearance of the accused before the Court or his production before the Court, process-fee is required to be paid by the complainant in view of the provisions of S.204 of the Code. Consequently, in the further proceedings in such cases where Ss.82 and 83 steps are issued, the complainant is bound to pay the process-fee and consequently, the Court is having the discretion to dismiss the complaint in such cases under S.204(4) of the Code for nonpayment of process-fee._ _The above discussion would lead to the following conclusion:- a) If summons is issued in a case, the complainant is bound to pay process-fee; b) If warrant is issued in a case before the service of summons on the accused or before the appearance of the accused before Court, the complainant must pay process-fee; c) If proceedings under Ss.82 and 83 of the Code are initiated in a case before the service of summons on the accused or before the appearance of the accused before the court, the_ Crl.R.P.No. 953 of 2017 5 _complainant must pay the process fee; d) If warrant is issued after the service of summons or after the appearance of the accused before the court, the complainant need not pay any process-fee; and e) If proceedings under Ss.82 and 83 are initiated after the service of summons on the accused or after the appearance of the accused before the Court, the complainant need not pay any process-fee._ _16. In “(a) to (c)” mentioned above, the court is vested with the discretion to dismiss the complaint under S.204(4) of the Code for non-payment of the process-fee. In (d) and (e) mentioned above, the court is not having the discretion to dismiss the complaint under S.204(4) of the Code for nonpayment of process- fee._ ” 4. In the instant case, it is clearly averred that the petitioner had initially paid process fee for service of summons which was taken out to the accused and due to his non appearance the summons was repeated and the petitioner's counsel had taken steps in that regard and it was later that the trial court had issued non bailable warrant for enforcing the appearance of the accused and therefore the dictum laid down by this Court in Ayodya Printers Ltd's case (supra) is squarely applicable to the facts of this case. Accordingly, it is only to be held that the impugned order passed by the trial court, dismissing the complaint on the above ground is clearly illegal and untra vires. Accordingly, the impugned order is set aside. 5. The complainant and the counsel for the complainant will appear before the trial court at 11 a.m on 20.11.2017 on which day the trial court will proceed further with the complaint in accordance Crl.R.P.No. 953 of 2017 6 with law. 6. For taking out notice to respondents 1 to 3, this Court had directed the Public Prosecutor to ensure that a proper enquiry is conducted by the Inspector of Police of the area concerned to ascertain the correct address and whereabouts of respondents 1 to 3. The Inspector of Police, Sulthan Bathery, Wayanad District has now furnished a report to this Court on 22.09.2017 wherein it is stated that the first respondent, _M/s T.M.Hardwares, SBP V/507, 506, Moozhayil Complex, Sulthan Bathery.P.O, Wayanad District – 673 592_ , was functioning in Sulthan Bathery and had stopped their activities in Sulthan Bathery about six months ago and that the 2[nd] and 3[rd] respondents are the partners of the said firm. Further that the 2[nd] respondent, Sri.Saji.M is now residing with his family at Pazhupathoor near Sulthan Bathery and that presently he is engaged in cultivation of ginger in Karnataka State and that the enquiries had revealed that the address of R2 is as follows: _“Saji.M, S/o. Manu, XVI-565 Lakshmi House, Pazhupathoor, Beenachi.P.O, Mob.9947811550, 8496849481.”_ 7. Further it is also stated in the said report that the 3[rd] respondent is the brother of the 2[nd] respondent and that though his name is shown as Sudhish, in the complaint, the enquiries have Crl.R.P.No. 953 of 2017 7 revealed that the second partner of the aforesaid firm is having the name Subeesh and that his address is as follows: _“Subeesh,S/o.Manu,_ _Lakshmi Nivas, Puthoorvayal,_ _Meppadi, Mob.9745229797”_ 8. The Apex Court in the judgment in **Indian Bank Association and others** v **. Union of India and others reported in 2014 (5) SCC 590 = 2014(2) KHC 330** has held in para 23.2 thereof that the Judicial Magistrate concerned should adopt a pragmatic and realistic approach while issuing summons in complaints involved in Sec.138 of the NI Act and that summons must be properly addressed and send by post etc. and the trial court in appropriate cases may take the assistance of the police or the nearby court to serve summons on the accused etc. In the light of the above said report furnished by the Inspector of Police, Sulthan Bathery, it is made clear that the complainant will be at liberty to furnish the correct addresses of the accused and summons/warrant should be taken out to accused no.1 through the care of address of accused no.2 and since the accused have not so far appeared before the trial court, the complainant could also be permitted to correctly show the name of the accused no.3. It is also made clear that the trial court will be at liberty to seek the assistance of the police authorities concerned to ensure that Crl.R.P.No. 953 of 2017 8 warrant is served on the accused in the above said correct addresses as shown in the above said report of the Inspector of Police, Sulthan Bathery and in that regard the trial court may ensure that the assistance of the police authorities is facilitated through the Assistant Public Prosecutor who is attached to the said Court. With these observations and directions this Criminal Revision Petition will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** //True Copy\\ P.A to Judge IAP