Wednesday 9 July 2014

Whether complainant has right to file appeal in case under NI Act even though police case in that respect has failed?



Though   a   number   of   illegalities   appear 
to have been committed before the trial Court, it 
does   appear   that   the   applicant   ought   to   have   a 

right to challenge the order of acquittal passed 
in respect of offence punishable under section 138 
of   the   Negotiable   Instruments   Act   by   filing   an 
appeal,   as   contemplated   under   section   378(4)   of 
the Code of Criminal Procedure.  When this aspect 
of   the   matter   is   discussed,   the   learned   counsel 
for   the   applicant   submits   that,   the   applicant 

would   file   an   appeal   challenging   the   order   of 
acquittal in the case that was instituted upon his 
complaint.     Needless   to   say   that   the   applicant 
shall be at liberty to do so.  
In   view   of   this,   the   Revision 

Application   is   allowed   to   be   withdrawn   and 
dismissed as such, with liberty to the applicant 
to file an appeal challenging the order, in so far 
as it relates to the acquittal in respect of the 
offence   punishable   under   section   138   of   the 
Negotiable Instruments Act. 


IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 73 OF 2013  
Usman S/o Rasul Tamboli 

­VERSUS­ 
The State of Maharashtra 
  
   CORAM : ABHAY M. THIPSAY, J.
   Dated: December 05, 2013
Citation; 2014 ALLMR (cri)1705 Bom

Heard   the   learned   counsel   for   the 
parties. By consent, admitted and decided finally. 
2.
Because   of   the   clubbing   of   the   two 
cases,   one   in   respect   of   an   offence   punishable 

under   section   138   of   the   Negotiable   Instruments 
Act   and   the   other   in   respect   of   an   offence 
punishable under section 420 of the Indian Penal 
Code (IPC), a peculiar situation has arisen.  The 
case, in respect of the offence punishable under 
section 420 of IPC, was instituted upon a police 
report and apparently, on the applicant’s – who is 

the   original   complainant   –   own   application,   the 
case   in   respect   of   offence   punishable   under 
section 138 of the Negotiable Instruments Act was 
ordered to be merged with the case in respect of 
offence punishable under section 420 of IPC.  The 
learned   Magistrate,   by   his   judgment   and   order 
dated  12.07.2007,  acquitted  the  accused  i.e.   the 
respondent   No.2   herein,   in   respect   of   both   the 
aforesaid offences.  
Treating   this   acquittal   to   be   an 
acquittal in a case instituted upon police report, 
the State of Maharashtra appealed to the Court of 
Session,   Osmanabad,   but   the   learned   Sessions 
Judge, dismissed the appeal.  

The State, apparently, has not taken any 
steps after dismissal of the appeal, but now the 
applicant,   who   is   the   original   complainant,   has 
approached   this   Court   by   filing   the   present 
The   grievance   of   the   applicant   is   that 

3.
Revision Application.  
the   learned   Sessions   Judge   has   not   considered, 
whether or not, the case in respect of the offence 
punishable   under   section   138   of   the   Negotiable 
Instruments Act had been proved or not.  In other 
words,   according   to   the   applicant,   the   learned 
Sessions  Judge  failed  to   examine  the   correctness 
of   the   order   of   acquittal   recorded   by   the 
Magistrate with respect to the offence punishable 
under   section   138   of   the   Negotiable   Instruments 
Act.  
4.
Though   a   number   of   illegalities   appear 
to have been committed before the trial Court, it 
does   appear   that   the   applicant   ought   to   have   a 

right to challenge the order of acquittal passed 
in respect of offence punishable under section 138 
of   the   Negotiable   Instruments   Act   by   filing   an 
appeal,   as   contemplated   under   section   378(4)   of 
the Code of Criminal Procedure.  When this aspect 
of   the   matter   is   discussed,   the   learned   counsel 
for   the   applicant   submits   that,   the   applicant 

would   file   an   appeal   challenging   the   order   of 
acquittal in the case that was instituted upon his 
complaint.     Needless   to   say   that   the   applicant 
shall be at liberty to do so.  
In   view   of   this,   the   Revision 
5.
Application   is   allowed   to   be   withdrawn   and 
dismissed as such, with liberty to the applicant 
to file an appeal challenging the order, in so far 
as it relates to the acquittal in respect of the 
offence   punishable   under   section   138   of   the 
Negotiable Instruments Act. 

( ABHAY M. THIPSAY, J. )

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