The main legal point established in the judgment is that the dismissal of a complaint under the Negotiable Instruments Act does not automatically result in the acquittal of the accused, and therefore, the appeal under Section 378(4) CrPC may not be maintainable.

JUDGMENT & ORDER :

Crl. L.P No. 4/2019 is an application under Section 378 (4) of the Code of Criminal Procedure, 1973 (for short, CrPC), praying for special leave to appeal to the appellant to prefer appeal against the order dated 26.02.2019 passed by the learned Judicial Magistrate– Ist Class, East Sikkim at Gangtok in Private Complaint Case No. 33 of 2018. Crl. L.P No. 5/2019 is a similar application filed under Section 378 (4) CrPC praying for special leave to appeal to the appellant to prefer appeal against the impugned order dated 26.02.2019 passed by learned Judicial Magistrate-1st Class, East Sikkim at Gangtok in Private Complaint Case No. 34 of 2018.

2. Both Private Complaint Case No. 33 of 2018 and Private Complaint Case No. 34 of 2018 are complaints filed by the appellant under Negotiable Instruments Act, 1881 (for short, N.I Act) against the present respondent.

3. Private Complaint Case No. 33 of 2018 was accompanied by an application under Section 142 (1) (b) of the N.I Act for condonation of delay of 39 days in preferring the connected complaint. Private Complaint Case No. 34 of 2018 was also similarly accompanied by an application for condonation of delay under Section 142 (1) (b) of the N.I. Act for condonation of delay of 78 days.

4. The learned Magistrate had taken up the applications for condonation of delay for consideration at the first instance. Without issuing any notice to the respondent herein, after hearing the learned counsel for the appellant, the learned Magistrate had come to the conclusion that the appellant herein had not been able to show sufficient cause to allow the applications for condonation of delay and had, accordingly, rejected both the applications by separate orders dated 26.02.2019.

5. Paragraph-8 of both the orders dated 26.02.2019, which is identical, reads as follows:-

“In view of the above and since the Complainant has not been able to show sufficient cause to allow condonation for her to file the instant complaint, the complaint fails and is dismissed accordingly.”

6. Challenging the aforesaid orders dated 26.02.2019, Crl. L.P No. 4/2019 and Crl. L.P No. 5/2019 have been filed along with Memos of Appeal.

7. It is to be noted, at this juncture, that appeals have not been registered till now as the instant Crl. L.P No.04/2019 and Crl. L.P No.05/2019 are pending adjudication.

8. In both the Criminal Leave Petitions, the respondents have filed objections, contending, amongst others, that in absence of an order of acquittal passed by the learned Magistrate, no right of appeal is conferred by statute upon the appellant/complainant and therefore, the applications seeking leave to appeal are not maintainable.

9. I have heard Mr. Jorgay Namka, learned counsel for the appellant and Mr. Anmol Prasad, learned senior counsel appearing for the respondent.

10. Mr. Namka submits that since the learned Magistrate had dismissed the complaints, the same amounts to acquittal of the respondent and therefore, appeal under Section 378 (4) CrPC would be maintainable. In support of his submissions, learned Counsel has placed reliance on the following decisions:

i. Vinod Kumar vs. State of Punjab, reported in 1999 SCC Online P&H 687.

ii. Kalpana Tyagi vs. Sneh Lata Sharma, reported in 2003 CRI.L.J. 3395.

iii. S. Rajaram vs. S. Seenivasan, reported in 2007(4) CTC 136.

iv. Mander Singh and others vs. Ladi, reported in 2008 SCC Online P&H 482.

v. Harvinder Singh vs. State of Punjab in Criminal Revision No.1275/2011 (Date of Decision: 28.01.2013).

vi. Skyline constructions and Housing Pvt. Ltd vs. T.D Kumaravell Vasanthan, reported in MANU/ KA/2158/2017.

11. Mr. Prasad, on the other hand, has submitted that a distinction has to be borne in mind with regard to complaint dismissed prior to the summoning of the accused and complaints dismissed subsequent to summoning of the accused. He has submitted that if a complaint is dismissed prior to the summoning of the accused, such an order of dismissal can be challenged only by way o