1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.241 OF 2009 Baburao S/o.Manikrao Jadhav, Age-45 years, Occu-Business, R/o.Khadgaon, Tal. And Dist. Latur APPLICANT VERSUS 1. The State of Maharashtra, Through the Office Incharge of Shivaji Nagar Police Station, Latur 2. Dhananjay S/o.Ramchandra Panchal, Age-35 years, Occu-Business, 3. Shanta @ Amruta W/o.Dhananjay Panchal, Age-33 years, Occu-Service, Respondent no.2 and 3 are R/o.Pragati Nagar, Khopegaon Road, Latur RESPONDENTS Mr.B.R.Kedar, learned counsel for applicant. Mr.B.J.Sonwane, learned APP for respondent State. Mr.V.D.Gunale, learned counsel for respondent no.2 and 3 (CORAM : A.V.POTDAR, J.) DATE : 27/01/2010 ORAL JUDGMENT : 1. By the present revision application, the applicant/original complainant in RCC No.804/2007 has challenged the order passed below Exh.1, dated 21/07/2009. 2. Considering the short point involved in the present revision, 2 Rule. Rule made returnable forthwith. By the consent of parties, heard finally at the stage of admission. 3. Before considering the rival submissions across the bar, such of the facts which are necessary, which gave rise to file the present revision application required to be summarized which read as follows : The present applicant Baburao Jadhav has filed SCC No. 631/2006 against the 2 nd respondent in the Court of J.M.F.C. Latur u/s. 138 of The N.I.Act as according to the complainant, one cheque issued in the sum of Rs.70,850/- by the 2 nd respondent and when it was deposited in the bank, it was bounced. Hence the notice was issued to the 2 nd respondent. Inspite of receipt of said notice, no reply was given by the 2 nd respondent, hence the complaint came to be lodged. The said complaint was decided by the learned J.M.F.C..Latur vide judgment and order dated 31/07/2007 in which the 2 nd respondent was acquitted, but in the body of the judgment, it is observed by the learned J.M.F.C. Latur that considering the facts and circumstances and the evidence came on record, it appears that with intention to cheat the applicant who is complainant in the said case, the 2 nd respondent issued cheque on account of his wife drawn on her bank which came to be dishonoured for insufficient funds. Hence the learned J.M.F.C. observed and gave directions in para no.8 of the said judgment to carry out the investigation u/s. 156(3) of The Cr.P.C. after registering the offence u/s. 406, 409 r/w. 34 and u/s. 420 of IPC against the 2 nd respondent. It appears that, pursuant to 3 the said directions, FIR came to be registered. Accordingly investigation was carried out. After investigation is over, charge sheet came to be filed in the Court of C.J.M. Latur and the case was numbered as RCC No.804/2007 in which order of issuance of summons came to be passed vide order dated 20/03/2008. Accordingly the 2 nd respondent appeared in the matter, prayed for bail, bail was granted. 4. It appears that the revision applicant has challenged the order passed in SCC No.631/2006 dated 31/07/2007 by preferring an appeal before this Court which appeal was numbered as Cri.Appeal No. 436/2007 and was admitted vide order dated 26/10/2007. The appeal is still pending. 5. It appears that the learned C.J.M. Latur has dismissed the said case RCC No.804/2007 vide order dated 21/07/2009 without any application appeared to be moved by the 2 nd respondent on the ground that as the appeal is preferred by the revision applicant before this Hon’ble Court, which is admitted, then issuance of process against applicant is barred under the provisions of Section 300 of The Cr.P.C., which order is impugned in the present revision application. 6. Considering the submissions of learned counsel appearing for the applicant, the learned APP for State, and learned counsel appearing for 2 nd respondent, only point require consideration is that 4 when the appeal against the order of acquittal is admitted by this Court, but not finally disposed of, either by allowing the appeal or by dismissing the appeal, can there be a bar u/s. 300 of The Cr.P.C. to take the cognizance of the case, which is based on the charge sheet filed on the basis of order passed by the competent criminal court. It is to be noted that criminal appeal no.436/2007 is pending in this Court and yet to reach the finality. Till this appeal stands disposed of on merit, either the appeal to be allowed, or the appeal to be dismissed. It can not be said that the appeal reached its finality, but the issue is still subjudice, and if the issue is still subjudiced, it can not be said that the 2 nd respondent is prosecuted for the same offence, but under different FIR. The proper course of action is the matter pending numbered as RCC No.804/2007, to be stayed or to be kept in abeyance during the pendancy of Criminal Appeal No. 436/2007. 7. In the premise, the impugned order dated 21/07/2009 is liable to be quashed and set aside. Accordingly it is quashed and set aside and substituted with the following order that further proceedings in RCC No.804/2007 are stayed during the pendancy of decision in Criminal Appeal No.436/2007. 8. Rule thus made absolute as indicated above. The revision application stands disposed of in terms of above order. (A.V.POTDAR, J.) khs/JAN 2010/cri.appl.241-09