THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.439 OF 2002 Dated:02.06.2010 Between: K.Raghava Reddy .. Petitioner And B.Muralidhar Rao and another .. Respondents CRIMINAL REVISION CASE No.439 OF 2002 ORDER: This Criminal Revision Petition is directed against the judgment dated 22.02.2002 in C.C.No.538 of 1999 on the file of the V Metropolitan Magistrate, Hyderabad, whereby and whereunder, the learned Magistrate acquitted the accused – first respondent herein for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’). The brief facts of the case are that the petitioner herein filed a private complaint against the first respondent before the V Metropolitan Magistrate, Hyderabad, for the offence under Section 138 of the N.I. Act stating that the accused got believed the petitioner that he has lands in Survey No.83 with Plot Nos.30, 31, 66 and 71 of Kutlur Village, Hayathnagar Mandal, Ranga Reddy District, admeasuring 950 square yards and expressed his willingness to sell the same to the petitioner for a total consideration of Rs.2,33,000/-. The petitioner having believed the same, paid the total amount of Rs.2,33,000/- to the accused, and requested him to register the said plots in his name. Thereafter, the petitioner came to know that the accused is not entitled to dispose of the said plots and when it was asked, the accused promised to return the amount, but did not do so. It is also alleged that when the petitioner made repeated requests, the accused issued a cheque, dated 30.05.1998 for an amount of Rs.1,40,000/- and on presentation of the same, it was bounced. As such, the petitioner filed a private complaint before the V Metropolitan Magistrate, Hyderabad. The learned Magistrate took cognizance of the said offence and numbered the complaint as C.C.No.538 of 1999. During the course of trial, on behalf of prosecution, PWs.1 and 2 were examined and Exs.P1 to P6 were marked. On behalf of first respondent, DWs.1 and 2 were examined and Ex.D1 was marked. The learned Magistrate, having analyzed the entire evidence on record, came to the conclusion that the offence punishable under Section 138 of the N.I. Act has not been made out and accordingly acquitted the accused for the said offence by his judgment, dated 22.02.2002. The same is questioned in this Criminal Revision Petition. Heard both sides. This Court is of the view that this revision is not maintainable. This is an order passed under Section 255(1) of Cr.P.C., which deals with acquittal. As per the said provision, if the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal. When once the judgment is that of acquittal, the remedy available to the aggrieved person like the petitioner herein is to approach the Court and file an appeal as provided for under Section 378 Cr.P.C., which deals with an appeal in case of acquittal. According to sub-section (4) of Section 378 Cr.P.C., if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. From the above provisions of law, it is clear that when once an order of acquittal is recorded under Section 255(1) Cr.P.C., the only remedy is to approach this Court and file an appeal against the acquittal with a petition seeking leave, whereas the petitioner/complainant has chosen to file the present revision invoking the provisions under Sections 397 and 401 of Cr.P.C., which in my considered view is not maintainable. Accordingly, this Criminal Revision Case is dismissed. If the petitioner so chooses, he may file an appeal as provided for under Section 378 Cr.P.C. ____________________________ GOPALA KRISHNA TAMADA, J 02.06.2010 KH