M V NALINAKSHAN Vs. M RAMESHAN

JUDGEMENT

(1.) On a complaint preferred by the petitioner, learned Magistrate found that cheque for Rs. 1,00,000 issued by the first respondent for discharge of legally enforceable debt/liability was dishonoured for insufficiency of funds in spite of petitioner intimating dishonour and demanding payment of the amount, first respondent did not pay the amount and thereby first respondent committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the Act'). He was convicted of the said offence but instead of sentencing him as provided in the Act. He was released under Section 4(1) of the Probation of Offenders Act (for short 'the PO Act') on executing bond for Rs. 5,000 with two sureties for the like sum each to appear and receive sentence which called upon during a period of one year and in the meantime to keep peace and be of good behaviour. That part of the judgment is under challenge in this revision at the instance of the complainant.

(2.) The questions raised are whether a revision at the instance of the petitioner who could have challenged the impugned order by way of appeal is maintainable and whether, it is expedient in the ends of justice to release a person convicted of the offence punishable under Section 138 of the Act under Section 4(1) of the PO Act.

(3.) Based on the evidence of PWs1 and 2 and Exs. P1 to P8, learned Magistrate found that first respondent committed the offence punishable under Section 138 of the Act. No challenge is made before me on behalf of the first respondent against his conviction. It is contended by the learned counsel for first respondent that since petitioner could challenge the order releasing the first respondent on probation by way of appeal under Section 11(2) of the PO Act, a revision at his instance is not maintainable in view of the bar under Section 401(4) of the Code of Criminal Procedure (for short, 'the Code').