The main legal point established in the judgment is that the requirement of obtaining special leave to appeal against an order of acquittal in a complaint case under Section 378 (4) Cr.P.C is a condition precedent, and there can be no revision or conversion of a revision to appeal against such an order.

JUDGMENT

Ajit Borthakur, J. - Heard Mr. P.K. Deka, learned counsel for the applicant/ revision petitioner. Also heard Mr. A.M. Borah, learned Senior counsel appearing for the respondent No. 1 and Mr. B.J. Dutta, learned Addl. PP., for the respondent No. 2/ State.

2. This interlocutory application is filed by the applicant in Crl. Revision Petition No. 35/2017 praying for converting the aforesaid Criminal Revision to a Criminal Appeal under Section 401 (5) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short).

3. The applicant/ revision petitioner has preferred Crl. Rev. Petition No. 35/2017 against the judgment and order dated 08.12.2016 passed by the learned Addl. Sessions Judge, F.T.C., Cachar at Silchar in Crl. Appl. No. 14/2016 setting aside the judgment and order, dated 24.05.2016 passed by the learned Addl. Chief Judicial Magistrate, Cachar at Silchar in N.I. Case No. 39/2011 convicting the respondent No. 1 under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short) and sentenced him to pay an amount of Rs. 1600000/- in total to the applicant/ revision petitioner, in default to undergo simple imprisonment for 2 (two) years.

4. It is contended that being aggrieved with the aforesaid judgment and order, dated 08.12.2016, passed by the learned Addl. Sessions Judge, F.T.C, Cachar the applicant filed Crl. Revision Petition being No. 35/2017. The aforesaid revision petition was admitted and heard on several occasions. However, in course of hearing, it came to light that the applicant ought to have preferred an appeal instead of a revision petition and therefore, this Court by order dated 28.05.2019 permitted the applicant/ revision petitioner to file an application under Section 401 (5) Cr.P.C. Hence the instant interlocutory application is filed praying for converting the Criminal Revision Petition No. 35/2017 to a Criminal Appeal Petition.

5. Mr. P.K. Deka, learned counsel for the applicant/ revision petitioner, contends that in the backdrop of facts stated in the application and as the revision petition was filed within the prescribed period of limitation, by virtue of Section 401 (5) Cr.P.C., this Court in exercise of its discretion and in order to meet the ends of justice, can treat the Criminal Revision as a Criminal Appeal Petition. Mr. Deka further contends that the respondent No. 1 was acquitted of the offence under Section 138 of the N.I. Act on misappreciation of the evidence on record and as the applicant preferred the revision petition on an erroneous bonafide belief that no appeal lies, the revision petition may be converted to a Criminal Appeal lest the applicant's meritorious case will fail without adjudication causing injustice to him.

6. Controverting the above argument advanced by the learned counsel for the applicant, Mr. A.M. Borah, learned Sr. Counsel appearing for the respondent No. 1, submitted that under Section 378 (4) Cr.P.C if an order of acquittal is passed in any case instituted upon complaint, the complainant must obtain special leave to appeal to the High Court by presenting a separate application for the purpose within 60 days from the date of the order of acquittal. According to Mr. Borah, it is a settled principle of law that where the statue provides for a thing to be done in a particular manner, then it has to be done in that manner only and further, as the language used in sub-Sections (4) and (6) of Section 378 Cr.P.C. is without any ambiguity, the aforesaid provisions are to be followed in their true and proper interpretation. Mr. Borah submitted that Section 401 (5) Cr.P.C being not a non obstante clause, it has no overriding effect over the other provisions of Cr.P.C and therefore, there is no option, but to reject the application.

7. Mr. B.J. Dutta, learned Addl. PP for the respondent No. 2/ State has concurred with the submission made by learned Senior counsel appearing for the respondent No. 1.

8. I have considered the above submissions made by learned counsel of both