BHOLA SHANKAR PATEL Vs. VIJAY KUMAR NISHAD

JUDGEMENT

(1.) This is an application under Sec. 378(4) of Code of Criminal Procedure, 1973, (hereinafter called as "Cr.P.C.") for grant of special leave to prefer appeal against the order dtd. 28/11/2023 passed by learned Judicial Magistrate First Class, Bastar, Place Jagdalpur (C.G.) in Complaint Case No. 527/2018, whereby the complaint case filed by the applicant/complainant has been dismissed under Sec. 204 (4) of Cr.P.C. for non-compliance of court 's order and non-payment of process fee.

(2.) Brief facts of the case are that the complainant/petitioner had filed a Criminal Complaint Case under Sec. 138 of Negotiable Instruments Act, 1881, before the court of learned Judicial Magistrate First Class, Bastar, Place Jagdalpur, against the respondent/accused. The Criminal complaint was registered as Criminal Complaint Case No. 527/2018, and vide order dtd. 27/9/2018, process was ordered to be issued to the respondent/accused on payment of process fee by the complainant/petitioner. For one or the other reason, the process could not be served upon the respondent/accused and the case was adjourned time to time. Vide order dtd. 24/1/2019, the bailable warrant was ordered to be issued but the same also could not be served upon the respondent/accused and again the case was adjourned from time to time. On 28/11/2023, when the case was again taken up for hearing, it revealed to the learned Trial court that the complainant/applicant is not paying the process fee as ordered by the learned Trial Court on 05-08- 2023, 14/9/2023, 30/9/2023, 17/10/2023 and 4/11/2023 and then the learned Trial Court has dismissed the complaint case of the complainant/ applicant on 28/11/2023 by invoking the powers under Sec. 204(4) of the Cr.P.C. Hence, this application for grant of leave to appeal.

(3.) The learned counsel for the petitioner would submit that the process fee was paid by the complainant/petitioner so many times for service of process upon the respondent/accused but the same could not be served upon him. Therefore, the learned Trial Court should have exercised its discretion to adjourn the case instead of dismissing it. He would further submit that the exercise of jurisdiction of Sec. 204 (4) of Cr.P.C. is discretionary. When the case was fixed for appearance of the respondent/accused, the same cannot be dismissed for non-payment of process fee. Therefore, the order impugned suffers from material irregularity and illegality and the same is liable to be set-aside.