JUDGMENT 1. - Heard. 2. The accused petitioner filed this revision petition under Sections 397 read with 401 CrPC against the order dated 23.7.2010 passed by First Appellate Court in Criminal Appeal No.35/2010, whereby the conviction and sentence awarded by the Additional Chief Judicial Magistrate No.10, Jaipur City, in Criminal Complaint No.866/2006 for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, vide judgment dated 14.10.2009, was upheld and the appeal filed by the accused petitioner was dismissed. 3. Before proceeding to deal with the revision on merits, it is pertinent to mention that the petitioner did not surrender before the Appellate Court at the time of pronouncement of judgment. Even in the certificate filed under Rule 311(3) of the Rules of Rajasthan High Court, the fact with regard to non surrender of the accused is reflected. 4. Brief facts necessary for the purpose of this revision are, that non petitioner Company had filed a complaint to the effect that in consideration of the amounts borrowed by the accused petitioner under hire purchase agreement for a bus bearing registration no.RJ 14P 5068, he issued a cheque in favour of the complainant on 26.10.2005 amounting Rs. 1,85,000/-, which on presentation in the bank, was dishonoured on account of insufficient funds. Thereafter, the non petitioner, after adopting the procedure prescribed under the Negotiable Instruments Act, filed aforesaid criminal complaint, whereupon the Court took cognizance against him. 5. On his appearance before the Court, charge under Section 138 of the Negotiable Instruments Act, was read over and explained to him, which he denied and alleged false implication and claimed trial. 6. In order to substantiate his complaint, non petitioner filed affidavit as PW.1 and examined himself and after completion of complainant's evidence, petitioner was examined under Section 313 CrPC. In his defence he examined himself as DW.1. 7. During arguments before the learned trial court the counsel appearing for the accused stated that the amount which was borrowed from the complainant Company, had been repaid. In support of his contention, documentary evidence Exhibits P.1 to P.29 were filed. It was stated by the accused before the trial court that the impugned cheque was given to the complainant Company as security at the time of taking loan vide agreement no.1061 in the year 2001 and that he has been falsely implicated in this case by misusing the impugned cheque. 8. It was stated by the accused before the trial court that the impugned cheque was given to the complainant Company as security at the time of taking loan vide agreement no.1061 in the year 2001 and that he has been falsely implicated in this case by misusing the impugned cheque. 8. On the other hand it was submitted by the complainant Company that accused had borrowed amount from the Company twice, first in the year 2001 and second in the year 2003. Agreement for second time loan was annexed as Ex.P.9, and the impugned cheque was issued by the accused in respect of the loan taken by him in the year 2003, the amount of which has not been repaid by the accused. 9. The learned trial court, after hearing the parties and on the basis of material before it, passed the order impugned on 14.10.2009, and convicted the petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced him 1 year simple imprisonment alongwith a fine of Rs. 3,00,000/-, in default whereof to further undergo simple imprisonment for 1 month. 10. As against this, the petitioner filed appeal, which was dismissed by the Additional Sessions Judge No.6, Jaipur City on 23.7.2010. 11. After having gone through the impugned orders, I find that the petitioner did not surrender before the Appellate Court and in his absence the Appellate Court has passed the order impugned. As per Section 389 CrPC, power for suspension of sentence during pendency of appeal. Section 389 CrPC reads as under:- 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. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a court subordinate thereto. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a court subordinate thereto. (3) Where the convicted person satisfies the court by which he is convicted that he intends to present an appeal, the court shall, - (i) Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) Where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of 'imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. 12. As is clear from sub-section (3) of Section 389 CrPC, at the time of pronouncement of judgment by the trial court, the accused may apply for suspension of sentence, showing his intention to appeal before the appellate court. The trial court may suspend the sentence for a period of one month for filing the appeal. After filing of the appeal under Section 374 CrPC, appellate court may exercise the power under Section 389 CrPC to suspend the sentence during the pendency of appeal, but while passing the judgment in appeal, theappellate court is not given discretion to exercise the power as provided under Section 389 (3) CrPC, therefore, the appellate court has no option but to take the accused in custody and send him to jail to serve the sentence. 13. Admittedly, in the present case, the petitioner (accused) was not present before the appellate court at the time of pronouncement of judgment nor did he surrender as per requirement of law, therefore, in absence of his surrender, present revision petition is not maintainable. 14. In this view of the matter, the petitioner had no right to file this revision against the order of Appellate Court. 14. In this view of the matter, the petitioner had no right to file this revision against the order of Appellate Court. Otherwise also, there being concurrent findings arrived at by two courts below, no interference by this court in its revisional jurisdiction is called for. 15. Hence the revision deserves to be dismissed and is hereby dismissed. The application seeking suspension of sentence, also stands disposed.Petition dismissed. *******