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2012 DIGILAW 1076 (MAD)

P. Ramakrishnan v. Rani Rambai

2012-02-28

S.NAGAMUTHU

body2012
Judgment :- 1. The petitioner is a convict in C.C.No.221 of 2005 on the file of the learned Judicial Magistrate, Thiruvottiyur in Thiruvallur District. The said case was instituted on a private complaint filed by the respondent alleging that the petitioner had committed an offence punishable under Section 138 of Negotiable Instruments Act. On completing the trial, the learned Magistrate by judgment dated 19.10.2011, convicted the petitioner under Section 138 of Negotiable Instruments Act and sentenced him to undergo Simple Imprisonment for three months and to pay a sum of Rs.80,000/-as compensation to the complainant. On the same day, the petitioner filed a petition under Section 389(3) Cr.P.C seeking to suspend the sentence. The learned Magistrate, accordingly, allowed the petition and suspended the sentence till 18.11.2011, so as to enable the petitioner to prefer an appeal to the Court of Sessions. 2. Thereafter, according to the petitioner, he preferred an appeal to the Court of Sessions on 18.11.2011. But the same was returned on 19.11.2011. Thereafter, the petitioner has not represented the appeal. Neither did he challenge the order of return passed by the learned Sessions Judge. Instead, the petitioner filed another petition before the trial Court under Section 389 (3) Cr.P.C seeking to extend the period of suspension by another two weeks. The learned Judicial Magistrate returned the petition stating that the same is not maintainable. Therefore, the petitioner has rushed to this Court with this petition seeking a direction to the learned Judicial Magistrate , Tiruvottiyur to extend the period of suspension of sentence by another two weeks and also to recall the non bailable warrant issued for the arrest of the petitioner. 3. When this petition was taken up for hearing on the earlier occasion, the learned counsel pointed out that the learned Sessions Judge returned the petition for suspension of sentence by stating as follows: "Sentence suspended by lower court till 18.11.2011 only. Further order of extention to be given in lower Court." 4. The learned counsel would submit that it is because of the said observation made by the learned Sessions Judge, he approached the learned Magistrate seeking extension of the period of suspension of sentence by two weeks. The learned counsel would further submit that the learned Magistrate however, returned the said petition, which the petitioner has not represented nor did he challenge the said return order. 5. The learned counsel would further submit that the learned Magistrate however, returned the said petition, which the petitioner has not represented nor did he challenge the said return order. 5. The learned counsel did not mention on that day before this Court that the appeal memorandum itself was returned by the learned Principal Sessions Judge. Therefore, this Court called for remarks from the learned Principal Sessions Judge as to how he could return the miscellaneous petition with an observation that it is open for the petitioner to get the suspension period extended by the trial Court. 6. The learned Principal Sessions Judge, Thiruvallur has submitted his remarks before this Court today, in which, he has stated that the appeal preferred by the petitioner itself was returned on 19.11.2011 and along with the same the miscellaneous petition was also returned. He has further submitted that the appeal memorandum has not been represented so far. The learned counsel for the petitioner would also submit before this Court that the appeal memorandum which was returned by the learned Principal Sessions Judge has not been represented so far. 7. The narration of above facts would clearly go to show that the present petition is not only highly misconceived but also it amounts to a clear abuse of process of Court. Under Section 389 (3) Cr.P.C, the trial Court has got power to suspend the sentence for a maximum period within which an appeal is to e preferred by the convict as per the provisions of the Limitation Act. The learned Magistrate lacks jurisdiction to grant suspension beyond 30 days from the date of imposition of sentence. Therefore, the learned Magistrate was right in returning the petition filed by the petitioner seeking extention of suspension of sentence. It needs to be mentioned that the date of conviction is on 19.10.2011 and the sentence was suspended rightly by the learned Magistrate till 18.11.2011. 8. The learned Principal Sessions Judge was not right in pointing out that it is for the petitioner to get the period of suspension of sentence extended beyond 18.11.2011. To that extent, the order of return made by the learned Principal Sessions Judge cannot be appreciated. As I have already stated, the petitioner has not represented the appeal at all. 8. The learned Principal Sessions Judge was not right in pointing out that it is for the petitioner to get the period of suspension of sentence extended beyond 18.11.2011. To that extent, the order of return made by the learned Principal Sessions Judge cannot be appreciated. As I have already stated, the petitioner has not represented the appeal at all. It is too elementary to say that suspension of sentence under Section 389(1) Cr.P.C can be made only during the pendency of the appeal. When the appeal memorandum itself has not been represented and the same is in the hands of the petitioner, it is not at all possible for the appellate Court to suspend the sentence and it is not equally possible for the trial Court to extend the period of suspension of sentence beyond 30 days. In such view of the mater, the relief sought for in this petition for a direction to the learned Judicial Magistrate to extend the period of suspension of sentence by two weeks is not at all permissible in law. The learned Judicial Magistrate was right in issuing the warrant for the arrest of the petitioner for committing him to prison to undergo the period of sentence imposed upon him. 9. In the result, this Criminal original Petition is dismissed.