Vijay Pal Singh vs Yash Pal & Anr.
2008 Latest Caselaw 2017 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl. Appeal No.192/2001

                                    Reserved on :10.11.2008
                                    Date of Decision : 17.11.2008

       VIJAY PAL SINGH                              ...... Appellant
                              Through Mr.S.C.Buttan and Mr.Purvesh
                              Buttan, Advocates


                              Versus

       YASH PAL & ANR.                    ......         Respondents
                              Through Mr. Kirti Uppal, Advocate for the
                              respondent No.1.
                              Ms. Richa Kapoor, APP for the
                              State/Respondent no.2.

CORAM :
HON'BLE MR. JUSTICE ANIL KUMAR, J
HON'BLE MR. JUSTICE V.K.SHALI, J


     1. Whether reporters of local papers may be
        allowed to see the judgment?                             No
     2. To be referred to the Reporter or not?                   Yes
     3. Whether the judgment should be reported in the Digest?   Yes

                        JUDGMENT

V.K. SHALI, J:

1. This is an appeal filed by the appellant, a private party under

Section 378 (4) of Code of Criminal Procedure against the order dated

6th December, 2000 passed by Shri Narender Kumar, learned

Metropolitan Magistrate, Delhi. By virtue of the impugned order, the

learned Magistrate has acquitted the respondent No.1 for an offence

under sections 147, 223, 427 read with sections 149 and 336 IPC.

2. The appeal raises important question as to whether an appeal

u/s 378 (4) Cr.P.C. (it ought to have been 378(1) and (3) Cr.P.C. could

be entertained at the instance of a private party or complainant in

respect of a case filed on the basis of police report). Before dealing with

the said question, it would be pertinent here to mention the brief facts

of the case which are reproduced from the impugned judgment as

under:-

"a) Yashpal Singh, respondent No.2 was put to trial

on the basis of police case registered at the instance of the

appellant on 15th December 1990 under sections 147,

323, 427 read with section 149 and 336 of the IPC. The

allegations made in the FIR were that on 15th December,

1990 at about 7.40 A.M. near Johar of village Ibrahimpur

in the area of Samaipur Badli, the respondent along with

4/5 other persons formed an unlawful assembly with the

common object to cause hurt to the complainant and his

wife Smt. Sulakshna. It is also alleged that the

respondent No.1 was armed with a revolver and the

remaining 4/5 persons had Iron rods i.e. deadly weapons,

and caused hurt on the person of the appellant and his

wife. It has been stated that at the relevant time, the

appellant was driving his Maruti Car No. DDV-9690 along

with his wife and two sons: Sonu- aged 12 years and

Hardyal - aged 14 years, as he was going to leave both the

children at their school in the area of Radio Colony. So far

as the allegation of mischief is concerned it was alleged

that damage was caused to the glass panes of the car and

the respondent No.1 also fired in air from his revolver so

as to endanger human life and personal safety of others.

(b) After investigation, ASI Raghubir Singh filed a

charge sheet, recorded the statement, seized the vehicle

No. DDV 9690 and some broken pieces of glass panes

apart from one white colour button which was alleged to

have been recovered from the wearing apparel of

respondent No.1. Statement of Raj Kumar, alleged eye

witness of the crime was recorded, spot was

photographed. Respondent No.1 was arrested on 16th

January, 1991 and his car was also seized whereupon

after completion of the investigation challan was filed for

the aforesaid crime for which charges were framed and

they were put to trial.

(c) Respondent No.2, the prosecuting agency in

support of its case examined PW-1, Devender Kumar,

record Clerk of Hindu Ram Hospital, who proved MLC

Ex.PW1/A to Ex.PW-1/D of the appellant and his wife,

PW-2 Vijay Pal Singh, PW-3 Smt. Sulakhna, PW-4 Raj

Kumar, the alleged eye witness, PW-5 Jai Prakash who

proved photographs and negatives of the appellant, PW-6

Constable Jeevan Singh who accompanied the

investigating officer, PW-7 SI Raghubir Singh IO of the

case, PW-8 and Dr. C.P. Sharma to prove report on

examination of X-Ray plates, PW-9, Head Constable

Suresh Chander who took rukka from the IO and got the

case registered and PW-10 Inspector Hans Ram who

investigated the case partly after ASI Raghubir Singh was

transferred.

(d) The incriminating evidence was put to

respondent No.1 but in his statement under Section 313

Cr.P.C. he stated that he was the only accused person who

was arrested and put to trial. Respondent No.1 took the

plea that he has been falsely implicated in the instant case

by the appellant on account of the fact that the

respondent No.1 demanded the money back from the

appellant which was lent to him. It is because of this

reason that he has been falsely implicated. He has also

taken the plea of alibi and stated that on the date of

incident he was with the Vice Chancellor of Meerut

University, Dr.P.C. Gupta at his camp office in Khurja.

Dr. P.C. Gupta, Ex-Vice Chancellor of Meerut University

was examined as DW-1 by respondent No.1 in support of

his defence who supported the case of respondent No.1

about his presence at Khurja at the relevant date and time

when the incident is purported to have taken place. DW-2

Sh. Y.V. Krishna, Secretary to the Vice Chancellor has also

supported the case of the defence."

3. The learned Magistrate after hearing the arguments and

analysing the evidence, arrived at a finding that the prosecution has not

been able to prove the guilt of the accused beyond reasonable doubt, on

the contrary, he observed that the story which has been put up by the

appellant is full of inconsistencies and improbabilities and therefore,

acquitted the respondent No.1 of all the charges framed against him.

4. Feeling aggrieved by the aforesaid acquittal order, the appellant

wanted the State to file an appeal however, the State respondent No.2

after examining the judgment found that it was not a fit case for filing

an appeal and accordingly replied the appellant that so far as the State

is concerned, it has not found the case fit for filing an appeal, however,

the Director of Prosecution will have no objection in case the appellant

wants to file an appeal at his own end. This communication was sent to

the appellant on 2nd February, 2001. Accordingly, the appellant chose

to file the present appeal in the month of April, 2001 along with an

application seeking condonation of delay as well as leave to appeal

under Section 378 (4) of the Code of Criminal Procedure.

5. On 10th April, 2001, a notice to show cause was issued to the

State as to why the delay in filing the leave to appeal may not be

condoned and the leave to appeal may not be granted, returnable on

27th July, 2001. However, perusal of the orders passed thereafter show

that at no point of time either the delay has been condoned or the leave

to file the appeal has been granted to the appellant under Section 378

of the Code of Criminal Procedure. On the contrary, vide order dated

11th March, 2003, it was observed by the Division Bench of this Court

that as the parties are closely related to each other and are involved in

the litigation apart from the present case, the parties had arrived at a

compromise by way of a Memorandum of Understanding and the appeal

was accordingly disposed of in terms of the Memorandum of

Understanding arrived at between the parties vide order dated 22nd

April, 2003. Thereafter, it seems that respondent No.1 did not

allegedly perform his part of the compromise, leading to filing of a

Special Leave Petition before the Hon'ble Supreme Court in

Crl.A.Nos.451-453/2008 by the appellant on the basis of which not only

the order dated 18th November, 2006 and 8th May, 2007 were set aside

but the statement dated 22nd April, 2003 was also set aside directing

the restoration of Crl.A.No.192/01 to its original file and number. This

is how the matter got revived and the arguments have now been heard

so far as the present appeal is concerned. At the outset, it is observed

by us that so far as the question of delay is concerned, neither the

learned counsel for the respondent No.1 nor the learned APP for the

State have raised any objection regarding the condonation of delay by

the appellant in filing the present appeal seeking leave to appeal under

section 378 (4) of the Code of Criminal Procedure. However, on the

question of maintainability of the appeal, the respondent No.1 has

vehemently contested the locus of the appellant to file the present leave

to appeal against the order of acquittal or the leave application of

Section 378 (4) of the Code of Criminal Procedure. Accordingly, we have

heard the learned counsel for the appellant as well as respondents on

the question of maintainability of the appeal by a private

party/complainant in respect of the State case.

6. It has been contended by the learned counsel for the appellant

that present appeal is maintainable under Section 378(4) of the Code of

Criminal Procedure inasmuch as the appellant being a complainant and

informant as well as aggrieved party has a right to file the present

appeal against the wrongful acquittal of the respondent No.1 by the

learned Magistrate by the impugned order dated 6th December, 2000.

Attentively, it was contended by the learned counsel for the appellant

that even if the present application to leave to appeal mentions wrong

provision of Section 378(4), it may be read as an leave to appeal under

Section 378(1) Cr.P.C. because according to the learned counsel that

provision also does not prohibit a private complainant from filing an

appeal in a police case in case of acquittal. It was urged by the learned

counsel that Section 378(1) does not start with a non obstante clause

and therefore, it cannot be assumed that it was the intention of the

legislature that a private party should not be given the right to

challenge the order of acquittal even in a police case. The learned

counsel for the appellant has relied upon the judgment of the Hon'ble

Supreme Court in M/s J.K. International vs. State, Govt. of NCT of

Delhi and others AIR 2001, Supreme Court 1142 and Suga Ram @

Chhuga Ram vs. State of Rajasthan and others AIR 2006 SC 3258

apart from Single Judge's judgment of Karnataka High Court in Smt.

Champabai vs. M. Girijapathy and others 1999 Cri.L.J.3101. The

Supreme Court in J.K. International's case had observed that the High

Court has grossly erred in rejecting the application of the complainant

for intervention and from being heard in a petition filed under Section

482 Cr.P.C. by a party/petitioner seeking quashing of all the charges

against him under Section 120B, 406, 420 IPC. The Supreme Court in

the said judgment after referring to earlier judgment of the Supreme

Court in Bhagwant Singh vs. Commissioner of Police AIR 1985 SC

1285 and distinguishing the case of Thakur Ram vs. State of Bihar

AIR 1966 SC 911 had observed that the High Court had grossly erred

by closing the door of the appellant in the said case by refusing to hear

him in respect of quashing of an FIR where he was

informant/complainant. In the instant case also learned counsel has

contended that Directorate of Prosecution by its letter dated 2nd

February, 2001 has communicated to the appellant that it has found

the decision of acquittal not fit for appeal yet it would have no objection,

in case the appellant chooses to file an appeal against the impugned

judgment. It was in this background that the learned counsel

submitted that he was well within his right to file and maintain the

present appeal under Section 378 (4) of the Code of Criminal Procedure

inasmuch as shutting down the appellant from hearing of the present

appeal would only result in miscarriage of justice but would also

foreclose the right of the appellant to get the justice from the Court.

7. This plea of the learned counsel for the appellant has been

vehemently contested by the learned counsel for the respondent No. 1

on the ground that Section 378(4) specifically uses the word:

"if an order of acquittal is passed in any case instituted upon a complaint then the High Court may on an appeal on Special Leave to appeal from the order of acquittal being filed by the complainant may grant such an appeal to the complainant".

It was contended that the present appeal is arising out of a police

case in which cognizance had been taken under Section 190(b) of the

Code of Criminal Procedure and it is not a case where the cognizance

has been taken on the basis of a complaint filed by the complainant and

therefore Section 378 (4) of the Code of Criminal Procedure is not

applicable. It is pleaded that on the contrary, what is applicable is

Section 378 (1)(3) of the Code of Criminal Procedure under which only

the State has a right to file an appeal.

8. We have thoughtfully considered the submissions of the

respective sides. Before deciding the question as to whether the present

appellant has the locus to file the present appeal against the judgment

dated 6th December, 2000 is concerned, it would be pertinent here to

reproduce the relevant provisions of law of Code of Criminal Procedure,

1973. Sections 372 & 378 reads as under :-

372. No appeal to lie unless otherwise provided.-- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

378. Appeal in case of acquittal - [(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and 5-

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) The State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.]

(2) --------------------

(3) [No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5)--------------------------------

(6)--------------------------------

9. A perusal of the aforesaid Section 372 Cr.P.C. reveals that an

appeal is a creature of a statute and there is no inherent right to appeal

as is sought to be canvassed before us. Reliance in this regard is

placed on Akalu Ahir and Ors. Vs. Ramdeo Ram AIR 1973 SC 2145.

Further, Section 378 Cr.P.C. would clearly show that a distinction has

been made by the framers of the legislation in filing an appeal against

the acquittal in case based on police report on what is called a state

case and in respect of a complaint case. If an acquittal is arising from a

complaint case filed by the complainant obviously the complainant has

a right to prefer an appeal subject to Special leave (emphasis added)

granted by the High Court. But the position is totally different in a case

where the appeal is sought to be filed against the judgment of acquittal

where the cognizance has been taken on the basis of a police report

filed u/s 173 of the Code of Criminal Procedure what is called as a

challan. In such a case, it is only the State through the District

Magistrate or the Director of Prosecution as the case may who have to

obtain the leave to appeal and not the complainant. We have been

informed that in Government of National Capital Territory of Delhi, the

entire prosecution including the filing of leave to appeal or appeal

against acquittal in police case is done by the Director of Prosecution

under the supervision of Secretary Law, Department of Law,

Government of Delhi.

10. A perusal and comparison of these two sub-Sections (1) and (3)

on the one hand and sub-Section (4) on the other hand clearly show

that in State cases, private party has no locus to file an appeal against

acquittal. Further, while under sub-Section (4), the private party has

to obtain a Special leave (emphasis added), the State only has to obtain

a leave in contradistinction to special leave. Meaning thereby that the

private party has to show something special or extraordinary to get the

leave for hearing of an appeal against acquittal.

11. In the instant case also, the judgment of acquittal has arisen on

the basis of a police challan filed against the appellant for an offence

u/s 147, 149, 323, 336, 427 IPC. No doubt, in the instant case, the

prosecution, Director of Prosecution, namely respondent No.2 vide its

letter dated 2nd February, 2001 has written to the appellant that

although the impugned judgment dated 6th December, 2000 is not

found by the Director fit for appeal but it has no objection in case the

appellant choses to file an appeal against the impugned judgment, but

it does not give a right to the appellant to maintain the appeal, as the

under (Section 378 (1)) the appeal is not maintainable. In our view it

was not proper for the prosecution or Director of Prosecution after

having examined the judgment and forming an opinion that no appeal

ought to be preferred from the same, yet permit a private party namely

the appellant to file a leave to appeal and observing that it has no

objection to filing of appeal by the present appellant. This is not

warranted by law as envisaged under Section 378(1) and (3) Cr.P.C. It

will also add to the unnecessary burden of the Courts as it will impels

the private party to file a leave to appeal in respect of every police cases

resulting in acquittal.

12. The argument which is advanced by the learned counsel for the

appellant is to the effect that his leave to appeal is maintainable on

account of the fact that Supreme Court in M/s J.K. International vs.

State, Govt. of NCT of Delhi and others AIR 2001, Supreme Court

1142. We find ourselves unable to persuade that the ratio of said

judgment is applicable to the facts of the present case. The facts of J.K.

International's case, are distinguishable from the facts of the present

case. In the said case, a police case under Section 120B, 406,420 IPC

was registered at the instance of M/s J.K. International against the

accused. The respondent/accused had filed a case in the High Court

for the purpose of quashing of the FIR and the consequent charge sheet

filed by the police for the aforesaid offences. It was at that stage that

M/s J.K. International filed an application for being heard on the

question of quashing. The said application was dismissed on the

ground that as the cognizance has been taken on the basis of a police

report and it is a police case, the private party/complainant had no

locus standi to be heard on the question of quashing. Accordingly, the

application of M/s J.K. International was rejected by the High Court by

placing reliance on the judgment of Thakur Ram's case (supra) which

was a judgment of the three judges of the Supreme Court. On a special

leave being filed by M/s J.K.International, the Supreme Court set aside

the judgment of the High Court on the ground that the facts of the

Thakur Ram's case were totally different than the facts of the M/s J.K.

International and the ratio laid down by the Supreme Court in

Bhagwant Singh vs. Commissioner of Police were more appropriate

to govern the facts of M/s J.K. International's case. Supreme Court

observed that no doubt a police case is registered on the basis of a

private complaint but after having done so, the complainant does not go

into oblivion and is not altogether wiped out from the scene of the Trial

Court. It was also observed that even though the cognizance of the

offence is taken on the basis of police report but that does not debar

him from reaching the Court for ventilating his grievance. For this

purpose, the Court referred to the provisions of Section 301(2) by virtue

of which a private party/person can instruct a pleader to prosecute a

criminal case who will assist the prosecutor or the Assistant Prosecutor

who is in charge of the prosecution. This has to be done with the

permission of the Court as observed by the Court. The Supreme Court

felt if the private party could be heard even at the stage of revision than

keeping an aggrieved person outside the corridors of Court and not

attending to his grievance would not be appropriate. Accordingly, the

Supreme Court set aside the judgment of the High Court and directed

the High Court to give reasonable opportunity to the appellant namely

M/s J.K. International before deciding the quashing petition of the

respondent.

13. The facts of the present case are totally different. In the facts of

the present case, no doubt the cognizance is taken on the basis of a

police report which was initiated on the basis of a complaint lodged by

the appellant, but once the FIR is registered, the State takes on to itself

to espouse the cause of the complaint. It is the State which is incharge

of the case and the role of the complainant is only ancillary or

subsidiary to support the State case. In the present case, on the

complaint of the appellant an FIR was registered for various offences.

The matter was investigated and charge sheet was filed way back in

1990. Thereafter, the appellant had appeared as a witness in support

of the prosecution case namely offences under sections 147, 149, 323,

336, 427. As many as 10 witnesses were examined by the prosecution

and two witnesses by the respondent in defence. After detailed

examination of the entire evidence, learned Trial Magistrate did not

accept the prosecution case as proved beyond reasonable doubt on

account of inherent contradictions on major aspects and because of the

highly improbable story set up. The learned Magistrate on the contrary

accepted the plea of alibi of the respondent and acquitted the

respondent of the charge under section 147, 149, 323, 336, 427 IPC.

14. The prosecution has examined the matter threadbare and came

to a conclusion that it is not a fit case for filing an appeal. Under these

circumstances, once there is an acquittal on merit and the prosecution

came to the conclusion that there is no merit in the appeal, it is not

open to the private party to file an appeal by invoking Section 378 of the

Cr.P.C. because the appeal can be filed only by the State/Prosecution.

378(4) Cr.P.C. which has been invoked by the appellant in the instant

case is not applicable to the facts of the case because 378 (4) is

applicable only in cases where the acquittal takes place in case which is

instituted on the basis of a private complaint whereas the present case

is a police case. This view also gets a support from the judgment of

Parvati Devi's case. In Parvati Devi Vs. State & Ors. 2004 (115)

DLT 578, a private complaint was filed before a learned Magistrate in

respect of a Sessions trial offence. The learned Magistrate after

completing preliminaries committed the matter to the Sessions for trial.

Once the matter was sent to the Sessions Court, the State through its

prosecutor was incharge of the case by virtue of Section 225 Cr. P.C.

The case resulted in acquittal and it was against this acquittal that the

complainant filed a leave to appeal under Section 378 (4). The opposite

side took the plea that since the case was a Sessions trial and the

prosecutor was incharge, therefore it would not be treated as a case

instituted on private complaint and consequently Section 378 (4) had

no application. This argument was negatived by the Division Bench of

this Court and rightly so because the cognizance was taken by the

learned magistrate on the basis of a private complaint.

15. Therefore for seeing whether a private party can file an appeal or

not what is to be seen is on what basis the cognizance has been taken

under Section 190 Cr.P.C. Whether it has been taken on the basis of a

private complaint under Section 190 (a) Cr.P.C. or on the basis of a

police report under Section 190 (b) Cr.P.C. Since in the present case,

the cognizance was taken on the basis of a police report, therefore, the

private party has no right to file an appeal against acquittal under

Section 378 (1) (3) and seek leave. Even if we assume for the sake of

argument that this was an application for leave to appeal under section

378(1) read with sub-section (3) even then it would not be maintainable.

If such appeals is permitted then it will not only result in witch hunting

and will obliterate the distinction between a case initiated on private

complaint and a state case initiated on the basis of a police report and

the taking of a cognizance thereof. In case, Jagbir and Anr. vs. State

of Punjab, AIR 1998 SC 3130 the Hon'ble Supreme Court has held

that under Section 378(1) Cr.P.C. State alone can file an appeal in the

High Court against the order of acquittal after obtaining leave under

sub-section (3) thereof and the complainant in such a case only can file

an application under Section 401 Cr.P.C. for revision of that order.

16. On the basis of the aforesaid judgment we are of the considered

opinion that the present appeal by the appellant is not maintainable as

he does not have locus to maintain the present leave to appeal and the

judgment in J.K. International's case which is sought to be relied, is

distinguishable from the facts of the present case.

17. Having said so, we are cognizant of the fact that the Supreme

Court in Ramakant Rai vs. Madan Rai 2004 AIR (SC) 77 has

entertained an appeal against the acquittal passed by the High Court by

observing that the order of the High Court has led to a serious

miscarriage of justice and in such a case Supreme Court cannot refrain

from doing its duty and abstain from interfering on the ground that a

private party and not the State has invoked the Court's jurisdiction. It

may be pertinent here to mention that the judgment in Suga Ram's

case (supra) cited by the learned counsel for the appellant instead of

supporting the submission made by the appellant supports the view of

Ramakant Rai's case (supra). Further, in the light of these two

judgments, the judgment of the Karnataka High Court in

Champabhai's case (supra) pales into insignificance. The power

exercised by the Supreme Court under Section 136 or 142 of the

Constitution of India cannot be exercised by the High Court. The High

Court does not have and cannot exercise any such power. It has to go

strictly accordingly to the letter and spirit under Section 378(1) and (3)

of the Cr.P.C. read with Section 372 of Cr.P.C. Needless to say that in

a given case, where a serious miscarriage of justice is shown by a

private party on account of acquittal order passed by the courts below

in respect of a police case and the State does not prefer any appeal

under Section 378 (1) read with sub-Section (3) on account of malafide

reasons or ulterior consideration, it may perhaps be open for the

aggrieved parties to seek an appropriate writ of mandamus against the

State or the Officer under Section 226 of the Constitution of India. But

certainly a leave to appeal by a private party in respect of an acquittal

in a police case would not be maintainable under Section 378 (1)

Cr.P.C.

18. The learned counsel has also relied upon Ramji Missir & Anr.

Vs. The State of Bihar AIR 1963 SC 1088 and Shri.A.C.Aggarwal,

Sub-divisional Magistrate, Delhi and Anr. Vs. Mst. Ram Kali, etc.

AIR 1968 SC 1. We have gone through both the judgments. The ratio

of these cases not applicable to the facts of the case as no question of

interpretation of Section 378 (1) or (3) had arisen in them. There is

absolutely no ambiguity in the language of the Section 378 Cr.P.C. and

the first principle of interpretation is the literal interpretation which is

being followed in the instant case. Accordingly, the present leave to

appeal is dismissed.

19. Having said so that the appellant does not have locus standi to

maintain the present appeal against the acquittal order passed by

learned Magistrate. In addition to this, a perusal of Section 378 (1)(a)

would show that an appeal against an order of acquittal would lie only

to the Court of Sessions and not to the High Court. This get further

fortified from reading of Section 378(1) (b) Cr.P.C.

20. Since we are of the view that the appellant does not have the

locus standi to maintain the present leave to appeal yet in order to

satisfy ourselves regarding the correctness, legality and propriety of the

finding handed down by the learned Magistrate, this Court can exercise

the power of revision suo moto. Reliance in this regard is placed on

Hydru vs. State of Kerala 2004 (13) SCC 374. The record of the case

is available with this court. We have gone through the impugned

judgment of the learned Magistrate. The learned Magistrate has

critically analysed the entire evidence adduced by the respective sides

and came to the finding that the story which has been put up by the

appellant regarding the incident purported to have taken place is not

only highly improbable but in the light of the fact that there was

evidence adduced by the defence that he was not present at Delhi itself

on the date of incident, the learned Magistrate has disbelieved the

appellant's case. The learned Magistrate has also taken note of the fact

of the serious inconsistencies in the case of the complainant including

the non-production of his two sons who would have been very vital

witnesses and held that the appellant has not been able to prove the

case beyond reasonable doubt and accordingly acquitted him.

21. Be that as it may, it is really unfortunate that such a small

matter has continued to be prolonged by the appellant, firstly, before

the Trial Court from 1990 to 2001 when it resulted acquittal and again

from 2001 to 2008, since then the present leave to appeal is pending. It

is travesty of justice that in a small matter like this, where the parties

are relations, personal scores are being settled through Court of law by

keeping the other side hanging in Court for almost decades together.

Such a practice is not only deprecated but must be discouraged

strongly.

22. In the light of the aforesaid facts and circumstances, we hold that

the present leave to appeal is not maintainable by the private party

against the order of acquittal in a State case either under Section 378

(4) or 378 (1)(a)(3) of the Cr.P.C. Further on examination suo moto in

exercise of its power of revision, this Court does not find any illegality,

impropriety in the correctness of the impugned judgment passed by the

learned Magistrate. Accordingly, the present leave to appeal is

dismissed with costs which is quantified at Rs.20,000/-. The said cost

shall be paid within four weeks from today failing which the respondent

shall be well within its right recover the same from the appellant.

(V.K.SHALI) JUDGE

(ANIL KUMAR) JUDGE November 17, 2008 nk/RN/RS