1.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the applicant original complainant to quash and set aside the impugned order dated 30.12.2010 passed by the learned 10th Additional Chief Judicial Magistrate, Rajkot below Exh.58 in Criminal Case No. 4130 of 2008 by which while dismissing the complaint filed by the petitioner against the private respondents herein for the offences under Section 138 of the Negotiable Instruments Act the learned Magistrate has directed the petitioner original complainant to pay Rs.2000/ to each of the accused towards compensation under Section 250 of the Code of Criminal Procedure.
2.0 Shri Gogia, learned advocate for the applicantoriginal complainant has vehemently submitted that the learned Magistrate has materially erred in passing the impugned order under Section 250 of the Code of Criminal Procedure directing the petitioner to pay compensation to the accused. It is submitted that as such against the judgment and order of acquittal passed by the learned Magistrate the petitioner has already preferred appeal before this Court. It is submitted that therefore, as such order of acquittal cannot be said to be conclusive and final. It is further submitted that in any case merely because the applicantcomplainant has failed in the criminal case, the complaint has dismissed that by itself cannot be said that the petitioner has filed vexatious complaint which warrants compensation under Section 250 of the Code of Criminal Procedure. It is submitted that the petitioner bonafidely and still he believes that the accused persons have committed the offence under Section 138 of the Negotiable Instruments Act and therefore, the learned Magistrate has materially erred in passing the impugned order under Section 250 of the Code of Criminal Procedure. Therefore, it is requested to allow the present Criminal Revision Application and quash and set aside the impugned order passed by the learned Magistrate under Section 250 of the Code of Criminal Procedure.
3.0 Though, served nobody appears on behalf of the respondent nos. 3 and 4. Respondent no. 2 is reported to be gone under liquidation.
4.0 Having heard Shri Gogia, learned advocate for the applicant and considering the impugned order passed by the learned Additional Chief Judicial Magistrate, Rajkot directing the petitioner to pay Rs.2000/ to each of the accused under Section 250 of the Code of Criminal Procedure. It appears to the Court that the learned Magistrate has materially erred in passing the impugned order under Section 250 of the Code of Criminal Procedure. Merely because, the complainant might have failed and the accused persons are acquitted that by itself is no ground to pass an order under Section 250 of the Code of Criminal Procedure unless it is found that initiation of criminal proceedings were vexatious and / or were filed with mala fide intention. Under the circumstances and in the facts and circumstances of the case, the impugned order deserves to be quashed and set aside.
5.0 It is reported that as such against the order of acquittal passed by the learned Magistrate applicant has preferred appeal before this Court and considering the fact that order under Section 250 of the Code of Criminal Procedure is an independent order it is observed that present order shall not in any way affect the appeal which might have filed against the order of acquittal.
6.0 In view of the above and for the reasons stated above, present Criminal Revision Application succeeds. The impugned order dated 30.12.2010 passed by the learned 10th Additional Chief Judicial Magistrate, Rajkot below Exh.58 in Criminal Case No. 4130 of 2008 is hereby quashed and set aside. Consequently if any amount is deposited by the applicant pursuant to the impugned order, the same shall be returned to him at the earliest. Rule is made absolute to the aforesaid extent.
“kaushik”
sd/ ( M. R. Shah, J. )