IMPORTANT POINT
An accused guilty of committing an offence under Section 138, N.I.A. should not be allowed the benefit of probation.

ORDER

Thomas P. Joseph, J.—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’).

4. This revision is filed requesting this Court to exercise its revisional power over the order of learned Magistrate releasing the first respondent on probation. According to the learned counsel for petitioner, object of conferring power of revision under Sections 397 and 401 of the Code is to give the superior criminal Court a supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions, or apparent blindness of treatment which has resulted in some injury in the due maintenance of law and order or some undesired hardship to the individuals. Hence learned counsel contended that release of first respondent on probation after finding that he has committed the offence punishable under Section 138 of the Act has resulted in miscarriage of justice as there is no scope of application of Section 4(1) of the PO Act. Release of the first respondent on probation has resulted in undesired hardship to the petitioner and benefit to the first respondent. He therefore, requested this Court to exercise its supervisory jurisdiction and correct the mistake committed by the learned Magistrate.

5. Section 401(4) of the Code states as under:

“Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

The provision prima facie indicates that if an appeal lies under the Code against an order, a revision against that order at the instance of the party who could have appealed is not maintainable. So it has to be considered first whether an appeal is provided against the impugned order at the instance of petitioner. Section11 (2) of P.O. Act reads thus:

“Notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeal ordinarily lie from the sentences of the former Court.”

In this case, judgment was