The case before the Hon’ble High Court of Kerala is an appeal against the order of dismissal of the complaint by the Judicial First-Class Magistrate Court for non-appearance.
The appellant herein who is the complainant in the trial court filed a case under section 138 of the Negotiable Instruments Act for the alleged commission of dishonour of cheque by the respondent herein.
But the trial court dismissed the complaint about the default of non-appearance of both the complainant and accused before the trial court although the complainant submitted an excuse petition medical certificate stating that it is because of dysentery and vomiting that he did not appear.
The appeal before the court is that, whether the appeal can lie against the said dismissal order for the said default or if the revision petition can be filed against such dismissal order.
The Hon’ble Bench comprising Justice Badharuddin noted regarding the dismissal of the complaint about a default that “the magistrate may under section 204(4) of CrPC dismiss the complaint if process fees or other fees failed to be paid by the complainant.”
Further, it is noted regarding section 256 of CrPC that “when there is non-appearance of accused then the accused will be acquitted unless for other reason the magistrate may think fit to adjourn the case.”
Lastly, regarding the appealability and revision against the order of dismissal of the complaint by the trial court the hon’ble bench held that “if a person is acquitted for non-appearance under section 256 of CrPC then under section 378 of CrPC, the appeal can be filed against the acquittal but if the case is dismissed under section 204(4) CrPC for non-payment of process fee of then revision petition can be filed in sessions court or high court.”
