P.D. RAJAN, J.

1. The main challenge in this petition under section 482 of the Code of Criminal Procedure (for short 'Code') is that whether a revision is maintainable before a Sessions Judge against the order of acquittal in a case instituted upon a complaint? Petitioner contended that no revision will lie before a Sessions Court after the acquittal of the accused under Section 256 (1) of the Code in a private complaint and the direction of the Sessions Judge to take back the case on file and to proceed the case as per law is without any jurisdiction.

2. Petitioner filed this petition under Section 482 of the Code to quash the order in Crl.R.P.No.157/2009 of the Sessions Judge, Pathanamthitta. The above revision was preferred against the order in S.T. No.897/2008 of the Judicial First Class Magistrate Court-II, Pathanamthitta, which was filed for offence under Section 138 of the Negotiable Instruments Act. The petitioner who is the accused in the above case contended that the complainant was absent for several days in the trial court, and the complaint was dismissed by the learned magistrate and the accused was acquitted invoking Section 256 (1) Code. Against that, the first respondent preferred Crl.R.P. No.157/2009 before the Sessions Court, Pathanamthitta.

3. The facts in brief is that in discharge of a debt the petitioner issued a cheque for Rs.1,00,000/- in favour of the first respondent on 24.12.2007, drawn on Catholic Syrian Bank Ltd., Vallamkulam Branch. When that cheque was presented for encasement it was dishonoured for the reason "funds insufficient". A lawyer notice was issued on 18.01.2008 and after acceptance of the notice by the petitioner there was no repayment. In the circumstances, the above complaint under Section 138 of the Negotiable Instruments Act was filed before Judicial First Class Magistrate Court-II, Pathanamthitta and on 21.04.2008 cognizance was taken by the court and the case was posted on several occasions. On 26.05.2008, the complainant was not present and the case was posted to 15.07.2008. Thereafter on several occasions the complainant and the accused were absent. Finally, on 12.10.2009, the complainant was absent and the petitioner/accused was acquitted under Section 256 (1) of the Code.

4. The restrictions for preferring an appeal against acquittal has been contemplated under Section 378 of the Code which are provided to protect the interest of the accused and to safeguard him from personal revenge. According to Section 378, an appeal against an order of acquittal can be preferred only (i) by the Government, and (ii) in a case instituted upon a complaint by the complainant. The relevant law according to Section 378 (4) of the Code is that when an order of acquittal is passed in a case instituted upon a complaint and the High Court, on an application made to it by the complainant, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Further there is a clarification under Section 401 (4) which provides thus:

"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."

A reading of the above Section, the petitioner is prohibited from preferring a revision when there is provision for making an appeal under Section 401 (4).

5. section 378 of the Code of Criminal Procedure reads as follows:

"378. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),-

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by