IN THE HIGH COURT OF JUDICATURE AT BILASPUR:C.G. Cmm P @MQQG. no. (”/30 /07 APPLICANT (Appellant) : Kanta Devi, a ed 46 yr . w/o §§M 7 (Complamant) Prem ,Mr/o Nannada paraa Station road Raipur C G N wivzg Vt Ralpur CG \ ;‘\\ 5w V~-\ ‘blMwmsus l. SanJay, aged 40 yrs., s/o Chandumal Khatuja, r/o F/104, near Royal Home Bottle House,r_ Shanker nagar, P.S.Civil lines, Raipur, CG. State of Chhattisgarh, through S.H.O., P.S. Gole Bazar, Raipur, C‘G. K l L Application cum appeal under Section 3’78 (4) Code of Criminal 1 Procedure, 1973 for grant of special leave to appeal from the order ofacquittal :(V m ¥ ” HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.M.P.No. 420 of 2007 APPLICANT Kanta Devi VERSUS RESPONDENTS Sanjay and another. Shri Bhisma Kinger counsel for applicant. Shri Vivek Sharma PL for respondent No.2/State. APPLICATION UNDER SECTION 378 14! OF THE CODE OF CRIMINAL PROCEDURE. O R D E R ( lé .04.2010) n has been filed against the order dated 26.6.2007 passed tby Judicial‘Magistrate First Class, Raipur in complaint Case No. 68/2006 acquitting the respondent No.1 of the charge under Section 138 of the Negotiable Instrument Act. 2. Brief facts of the case are that a complaint case (Annexure A- 2) was filed on 7.3.2005 by the applicant against the respondent No.1 under section 138 of the Negotiable Instrument Act. After issuance of notice an affidavit was filed by the power of attorney holder of the complainant which is clear from the order dated 8.1.2007 Annexure A—4. The said affidavit was objected to by the respondent No.1 on the ground that the same is liable to be rejected as on the basis of the said affidavit the complainant cannot be cross examined. After recording the statement of the respondent No.1, the said affidavit was rejected by the Court below and the complainant and his power of attorney holder was directed to adduce evidence. Against the order dated 8.1.2007 the applicant preferred a revision which however came to be dismissed by order dated 14.5.2007 Annexure A-5.' Order passed in revision has not been assailed by the applicant in any Court of law and ultimately the Court below / acquitted the respondent No.1 of the charge under section 138 of / the Negotiable Instrument Act. 3. Admittedly, the order dated 8.1 .2007 passed by the Magistrate has’attained finality as the same was confirmed by the revisional Court vide order dated 14.5.2007 which has not been challenged ' Io @ before any Court of law. Order dated 26.6.2007 passed by the Magistrate reflects that the applicant wasasked whether he wanted to adduce any evidence and he stated that earlier affidavit filed on his behalf should be treated as his evidence. 4. ln view of this the trial Court was left with no other option but to decide the case and accordingly the respondent No.1 has been acquitted of the charge under Section 138 of the Negotiable Instrument Act. g. _ This cdurt finds no ineg'anty in the order impugned. Once “despiteesufficient opportunity the applicant has failed to adduce the evidence and; as the affidavit filed by the applicant was already rejectedybiyftheSCourt on 8.1 .2007, in the eye of law there remains no evidehce on recprd on the basis of which respondent No.1 could be convicted. 6. Accordingly, the judgment impugned does not suffer from any flaw warranting interference in the petition filed under Section 378(4) of the code of Criminal Procedure. Leave to appeal is therefore refused and application dismissed. Sdi’ aker > ‘ e ’7 ' yritixil§e§£gv r V: ._2——-— x e .# h