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2017 (8) TMI 2 - HC - Indian LawsOffence under Section 138 of Negotiable Instruments Act, 1881 - Judgment of Acquittal - Held that:- As a matter of fact, the complainant who is a 'Payee' under Section 7 of the Negotiable Instruments Act or a 'Holder in Due Course' under Section 9 of the Act, is entitled to seek 'Leave' under Section 378(4) of Cr.P.C., and bringing a Miscellaneous Petition in this regard seeking a prior permission from the High Court is perfectly maintainable in Law. Looking at from any angle, if the Judgment of Acquittal / Acquittal Order is passed 'in any case instituted upon a complaint', a Petition filed under Section 378(4) of Cr.P.C., seeking 'Grant of Leave' before the Hon'ble High Court is clearly maintainable in the eye of Law. It is to be pointed out that an offence under Section 138 of Negotiable Instruments Act, 1881 is not a Regular / Ordinary Crime like 'Murder' 'Grievous Hurt' or 'Simple Hurt' or other criminal case. To put it precisely, the offence under Section 138 of Negotiable Instruments Act, undoubtedly is a civil liability dressed in a criminal colour. Be that as it may it is to be pointed out that the burden is on the complainant in respect of an offence under Section 138 of Negotiable Instruments Act to establish his case against the Respondent / Accused beyond shadow of doubt. But at the same time, it cannot be slightly ignored that the Respondent / Accused is entitled to shake or affect the credibility of the prosecution story by bringing in certain facts / circumstances which point out about his probabilities of the case. In short, an accused in respect of offence under Section 138 of Negotiable Instruments Act is entitled to maintain silent. He need not enter into the box to dislodge the case of a complainant. It is just enough that if he is able to make an inroad into the evidence depositions of witnesses / witnesses of the prosecution side. In view of the qualitative and quantitative discussions as afore stated and also this Court on a careful consideration of the attendant facts and circumstances of the instant case in a cumulative manner is of the earnest view that the Petitioner / Appellant / Complainant has not made out a prima facie case to interfere with the 'Judgment of Acquittal' dated 18.10.2016 passed by the trial court.
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