Usman vs The State of Maharashtra

A.M. Thipsay, J.—Heard the learned counsel for the parties. By consent, admitted and decided finally. Because of the clubbing of the two cases, one in respect of an offence punishable u/s 138 of the Negotiable Instruments Act and the other in respect of an offence punishable u/s 420 of the Indian Penal Code (IPC), a peculiar situation has arisen. The case, in respect of the offence punishable u/s 420 of IPC, was instituted upon a police report and apparently, on the applicant''s--who is the original complainant - own application, the case in respect of offence punishable u/s 138 of the Negotiable Instruments Act was ordered to be merged with the case in respect of offence punishable u/s 420 of IPC. The learned Magistrate, by his judgment and order dated 12.07.2007, acquitted the accused i.e. the respondent No. 2 herein, in respect of both the aforesaid offences.

Treating this acquittal to be an acquittal in a case instituted upon police report, the State of Maharashtra appealed to the Court of Session, Osmanabad, but the learned Sessions Judge, dismissed the appeal.

The State, apparently, has not taken any steps after dismissal of the appeal, but now the applicant, who is the original complainant, has approached this Court by filing the present Revision Application.

The grievance of the applicant is that the learned Sessions Judge has not considered, whether or not, the case in respect of the offence punishable u/s 138 of the Negotiable Instruments Act had been proved or not. In other words, according to the applicant, the learned Sessions Judge failed to examine the correctness of the order of acquittal recorded by the Magistrate with respect to the offence punishable u/s 138 of the Negotiable Instruments Act.

Though a number of illegalities appear to have been committed before the trial Court, it does appear that the applicant ought to have aright to challenge the order of acquittal passed in respect of offence punishable u/s 138 of the Negotiable Instruments Act by filing an appeal, as contemplated u/s 378(4) of the Code of Criminal Procedure. When this aspect of the matter is discussed, the learned counsel for the applicant submits that, the applicant would file an appeal challenging the order of acquittal in the case that was instituted upon his complaint. Needless to say that the applicant shall be at liberty to do so. In view of this, the Revision Application is allowed to be withdrawn and dismissed as such, with liberty to the applicant to file an appeal challenging the order, in so far as it relates to the acquittal in respect of the offence punishable u/s 138 of the Negotiable Instruments Act.