Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 411 (MAD)

V. Chandrasekaran v. R. Nagarajan

2006-02-17

M.JEYAPAUL

body2006
Judgment :- (Revision preferred against the order dated 15.9.2005 in Crl.M.P.No.5841 of 2005 in C.A.No.232 of 2005 on the file of the learned VI Additional Judge, City Civil Court, Chennai, suspending the operation of judgment of the learned VII Metropolitan Magistrate, George Town, Chennai in C.C.No.2309 of 2002) This revision is preferred against an order passed by the learned VI Additional Judge, City Civil Court, Chennai in Crl.M.P.No.5841 of 2005 in C.A.No.232 of 2005 suspending the operation of judgment of the VII Metropolitan Magistrate, George Town, Chennai rendered in C.C.No.2309 of 2002. 2. The petitioner has been convicted by the learned VII Metropolitan Magistrate, George Town, Chennai in C.C.No.2309 of 2002 to undergo sentence of simple imprisonment for one year. The petitioner herein, aggrieved against the said judgment, preferred criminal appeal in C.A.No.232 of 2005 on the file of the learned VI Additional Judge, City Civil Court, Chennai. A petition in Crl.M.P.No.5841 of 2005 was filed before the said Court, seeking suspension of the operation of the judgment itself passed in C.C.No.2309 of 2002 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai. 3. Learned VI Additional Judge, City Civil Court, Chennai, having adverted to the fact that the petitioner was served with a show cause notice under Rule 17 of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, calling upon him to explain as to why a penalty of removal from service on the ground that he had been convicted by a criminal Court should not be ordered against him, chose to exercise his discretion under Section 389 (1) of the Code of Criminal Procedure suspended the operation of the judgment as the petitioner was facing a very grave situation on account of the conviction recorded by the trial Court in a case under Section 138 of the Negotiable Instruments Act. 4. Learned counsel for the petitioner/complainant would submit that only in exceptional circumstances, there can be a suspension of conviction recorded by the trial Court. Further he would say that either the Court will have to suspend the sentence or suspend the conviction, but it cannot suspend both the sentence and the judgment passed by the trial Court. The departmental proceedings initiated against the accused will not at any rate be a ground for suspending the judgment itself passed by the trial Court, it is argued. 5. The departmental proceedings initiated against the accused will not at any rate be a ground for suspending the judgment itself passed by the trial Court, it is argued. 5. Learned counsel for the respondent/accused, in response to the submission made by the learned counsel for the petitioner, would contend that inasmuch as the criminal case as against the respondent had not originated from the official function of the respondent, the Court will have to take a lenient view to save the petitioner from the embarrassment of removal from service by suspending the order of conviction. Further he would contend that the trial Court itself has come to a conclusion that there was no subsisting liability to issue the cheque in question and that therefore, the order passed by the learned VI Additional Judge, City Civil Court, Chennai, suspending the order of conviction does not warrant interference. 6. It is pertinent to incorporate Section 389 (1) of the Code of Criminal Procedure:- "Section 389: Suspension of sentence pending the appeal; release of appellant on bail – (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond." 7. A bare reading of the aforesaid Section would enlighten that the execution of the sentence or the very order appealed against can be suspended by the Appellate Forum. If the very order appealed against is suspended, the sentence flowed therefrom automatically gets suspended. Therefore there is no separate order for suspension of the sentence is required in case the order appealed against is suspended. But in a case where the execution of the sentence alone has been suspended, the party is entitled to seek for suspension of the very order appealed against, of course, on certain exceptional grounds. Therefore, the party, who appeals against the verdict of conviction, can directly file an application seeking suspension of the very order appealed against. In view of the above, there is no substance in the submission made by the learned counsel for the petitioner that the accused can seek either for suspension of the sentence or for suspension of the order of conviction. 8. In view of the above, there is no substance in the submission made by the learned counsel for the petitioner that the accused can seek either for suspension of the sentence or for suspension of the order of conviction. 8. The Orissa High Court in BENZAMIN KHIRO vs. STATE OF ORISSA (1995 CRI. L.J. 1682) has observed as follows:- "The word "execution" relates to both sentence and the order appealed against. The expression "order appeal against" appearing in S.389(1), relates to appeals as set out in S.454 of the Code, and does not encompass conviction. The word "suspend" means to postpone, defer, arrest, delay. Question of suspending "conviction" does not arise because it operates till set aside in either appeal or revision. Thus, a conviction cannot be suspended under S. 389(1) or under any other provision of the Code." 9. Though the aforesaid judgment declares that there can be no suspension of conviction under Section 389 (1) of the Code of Criminal Procedure or under any other provision of the Code of Criminal Procedure, the latest trend in the march of law appears to be totally different. 10. The Hon'ble Supreme Court in K.C.SAREEN vs. CBI, CHANDIGARH ( (2001) 6 SCC 584 ) has ruled that the power conferred under Section 389(1) of the Code of Criminal Procedure to suspend the conviction should be exercised by the Appellate or Revisional Court in very exceptional cases having regard to all aspects including the ramification of such suspension. 11. The aforesaid ratio has been reiterated in STATE OF MAHARASHTRA vs. GAJANAN AND ANOTHER (2004 (1) Crimes 164). Even in a case arising out of Prevention of Corruption Act, if the circumstance warrants, the Appellate Court can suspend the order of conviction itself. 12. The Hon'ble Supreme Court in RAMA NARANG vs. RAMESH NARANG AND OTHERS ( (1995) 2 SCC 513 ) holds that in appropriate cases, the High Court on being satisfied about the need for suspending the order of conviction can very well grant interim stay of operation of the order of conviction but the person approaching the High Court should invite the Court's attention to the specific consequence which is likely to fall upon conviction so as to enable the Court to apply its mind on that point before granting the stay. 13. The Delhi High Court in K. Bhagyanath Vs. 13. The Delhi High Court in K. Bhagyanath Vs. State (2003 (1) Crimes 1) while dealing with a similar case has chosen to set aside the order of lower Appellate Court as the latter failed to appreciate the show cause notice issued by the employer-bank to the accused calling upon him to explain as to why he should not be dismissed from service on account of the conviction for various offences under the Indian Penal Code and granted stay of operation of the judgment of conviction. 14. Now the legal position is well settled that the Appellate Court has every power under Section 389(1) of the Code of Criminal Procedure to suspend not only the sentence but also the conviction recorded by the trial Court, if exceptional circumstance warrants such exercise of power thereunder. 15. In this case, there is no dispute to the fact that the accused was served with a show cause notice calling upon him to explain as to why he should not be removed from service on account of the judgment of conviction stares at him. The judgment of conviction passed against the accused has not reached its finality. If the judgment of conviction is not suspended, the accused has to forego his employment even while the appeal preferred by him against the judgment of conviction is pending. 16. Coming to the discussion embarked upon by the trial Court to return a verdict of conviction, the Court finds that the trial Court has totally disbelieved the version of the complainant that there existed some liability for issuance of a cheque in question. As the cheque issued by the accused was admitted by him, raising the presumption in favour of the complainant, an order of conviction was recorded by the trial Judge. The very approach of the trial Judge is under focus before the Appellate Authority. 17. In the above facts and circumstances, the Court finds that the Appellate Authority has rightly exercised its discretion under Section 389 (1) of the Code of Criminal Procedure which does not smack of any irregularity or illegality warranting interference therewith. 18. In the result, the criminal revision case stands dismissed. Consequently, connected criminal miscellaneous petition also stands dismissed.