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2014 DIGILAW 1406 (PNJ)

Electromech Engineers v. State of Haryana

2014-10-09

DAYA CHAUDHARY

body2014
JUDGMENT : Daya Chaudhary, J. The present petitioner faced trial for offence punishable under Section 138 of Negotiable Instruments Act in Criminal Complaint No. 600 dated 30.10.2007/2.3.2012 and was convicted by the Trial Court vide its judgment dated 4.3.2013 and sentenced to undergo RI for a period of one year for offence punishable under Section 138 of Negotiable Instruments Act and further to pay compensation to the tune of Rs. 45 lacs in terms of Section 357(3), Cr.P.C. to the complainant within a period of two months from the date of passing of order and in default of payment of compensation the petitioner was to further undergo RI for a period of three months in view of law laid down by Hon'ble the Apex Court in case of Hari Singh v. Sukhbir Singh, 1988 (4) SCC 551 . Aforesaid judgment of conviction and order of sentence was challenged by way of filing an appeal before Additional Sessions Judge, Yamuna Nagar, which was dismissed vide judgment dated 17.4.2014 and judgment of conviction and order of sentence passed by the Trial Court was upheld. 2. After loosing the case before the two Courts below, the present revision petition has been filed by raising various arguments. Revision requires consideration and the same is admitted. Crl. Misc. No. 16966 of 2014 3. Vide order dated 26.5.2014, learned Counsel for the petitioner made a submission that the petitioner is ready to deposit the amount of cheque in dispute to contest the judgment of conviction on merit. Accordingly, the amount of cheque was ordered to be deposited in the shape of fixed deposit for a period of three years in the name of Registrar General of this Court within a period of 45 days and the case was adjourned for 8.7.2014. On 8.7.2014, learned Counsel for the petitioner had produced before this Court FDR No. 5145139 dated 1.7.2014 in the name of Registrar of this Court for a period of three years and, accordingly, notice of motion was issued. It was also brought to the notice of the Court on that date that the petitioner has not surrendered after dismissal of his appeal and hence is not in custody. 4. In response to notice of motion, Mr. It was also brought to the notice of the Court on that date that the petitioner has not surrendered after dismissal of his appeal and hence is not in custody. 4. In response to notice of motion, Mr. G.P. Singh, Advocate appeared on behalf of respondent No. 2 on 30.7.2014 and submitted that the petitioner has not surrendered after dismissal of his appeal before the lower appellate Court and order of suspension of sentence cannot be passed without his surrendering before the Court. The case was adjourned on the request of learned Counsel for the parties to address arguments as to whether the arrest/surrender of accused is necessary before passing of order of suspension of sentence. 5. Learned Counsel for the petitioner submits that there is no such provision under Cr.P.C. which says that surrender is necessary for issuing direction for suspension of sentence and revision is maintainable in case the petitioner has not surrendered or was not present before the lower appellate Court. Learned Counsel further submits that an amount of Rs. 30 lacs has already been deposited before this Court as per undertaking given by the petitioner. Learned Counsel for the petitioner has relied upon the judgment of Hon'ble the Apex Court in the case of Bihari Prasad Singh vs. State of Bihar and Another, (2000) 10 SCC 346 as well as of Madras High Court in the case of Easwaramurthy v. N. Krishnaswamy, 2006 Cri. L.J. 4105 in support of his contentions. 6. On the other hand, learned Counsel for respondent No. 2 while relying upon the judgment of this Court in the case of Satish Tandon v. State of Punjab and Another, 2014 (1) DCR 396 as well as of Rajasthan High Court in Madan Singh Panwar v. State of Rajasthan and Another passed in Cri. Revn. Petition No. 659/2011 decided on 16.9.2000 submits that for suspension of sentence, surrendering by the accused is necessary. 7. Heard the arguments advanced by learned Counsel for the parties and have also gone through the documents available on record. 8. Admittedly, the petitioner was not present at the time of passing of judgment by the learned Additional Sessions Judge, Yamuna Nagar and judgment was pronounced in his absence. The present revision petition has been filed before this Court and before issuing notice of motion an amount of Rs. 8. Admittedly, the petitioner was not present at the time of passing of judgment by the learned Additional Sessions Judge, Yamuna Nagar and judgment was pronounced in his absence. The present revision petition has been filed before this Court and before issuing notice of motion an amount of Rs. 30 lacs has been deposited, whereas, as per order of lower appellate Court the petitioner was directed to pay compensation to the tune of Rs. 45 lacs. 9. The only question which requires consideration in the present case is whether the High Court while exercising its revisional jurisdiction can refuse to pass order for suspension of sentence on the ground that the accused has not surrendered. 10. Under the provisions of Cr.P.C., there is no such requirement that the surrender is necessary before filing of revision petition. This issue came up for hearing before Hon'ble the Apex Court in Bihar Prashad Singh's case (supra), wherein, it has been held that there is no such provision under the Cr.P.C. and there is no requirement to surrender before filing of the petition. The observations made by Hon'ble the Apex Court in the said judgment are reproduced as under: "Under the provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrender." 11. On perusal of aforesaid judgment of Hon'ble the Apex Court, it is clear that there is no requirement in the Cr.P.C., which makes necessary for the accused to surrender after conviction. However, the Apex Court held that certain High Courts have made such provisions in their Rules which compel the petitioners to surrender before filing of revision petition in the High Court. While deciding the issue before Hon'ble the Apex Court such relevant provisions of the High Court Rules were not specifically brought to the notice. 12. Same issue came up for hearing before High Court of Madhya Pradesh (Gwalior Bench) in the case of Deepak Sahu and Others Vs. While deciding the issue before Hon'ble the Apex Court such relevant provisions of the High Court Rules were not specifically brought to the notice. 12. Same issue came up for hearing before High Court of Madhya Pradesh (Gwalior Bench) in the case of Deepak Sahu and Others Vs. State of M.P., (2012) ILR (MP) 1441.8 The relevant portion of the said judgment is reproduced as under:- "In the considered opinion of this Court, the language employed in Rule 48 makes it crystal clear that a declaration is mandatory for the accused to the effect that he is in custody or has surrendered after the conviction. The only exception provided in the rule is where the sentence has been suspended by the Court below. In other words, except in cases where a sentence was suspended by the Court below itself, in all other cases there has to be a declaration to the effect that the convicted person is in custody or has surrendered after the conviction. Thus, the intention of rule makers is unambiguous and clear regarding giving of such declaration. Needless to mention that an accused can give such declaration only if he is in custody or surrendered after the conviction. Thus, undoubtedly, the intention of rule is that one has to surrender after conviction or should be in custody except in those cases where sentence has been suspended by the Court. The word 'shall' is used to make it mandatory. This is salutary principle of statutory interpretation that when the words of a statute are clear, plain and unambiguous, the Courts are bound to give effect to that meaning irrespective of consequences. Nelson Motis Vs. Union of India and another, (1992) 4 SCC 711 . The Apex Court also held that 'if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law-giver', (page 50 Principles of Statutory Interpretation) (12th Edition 2010 by Justice G.P. Singh). The Apex Court also opined that when language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, the Act speaks for itself. The words themselves do alone in such cases best declare the intent of the law-giver', (page 50 Principles of Statutory Interpretation) (12th Edition 2010 by Justice G.P. Singh). The Apex Court also opined that when language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, the Act speaks for itself. In the light of this legal position, I have no hesitation to hold that Rule 48 makes it mandatory for the accused to give declaration about his surrender after the conviction or about the fact regarding his remaining in custody. Since Rule 48, in specific, was not brought to the notice of this Court in Kishore (supra), the said judgment is clearly distinguishable on this aspect. On the basis of aforesaid analysis, it is held that a revision petition against conviction is tenable only when it contains a declaration to the effect that the convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the Court below." 13. High Court of Madhya Pradesh in another case of Shyambabu Vs. State of M.P. and Another : while relying upon the judgment of Hon'ble the Apex Court in Bihari Prasad Singh's case (supra) as well as of Madhya Pradesh High Court in Deepak Sahu's case (supra) has held that revision against the conviction is tenable when it contains a declaration to the effect that the accused is in custody or surrendered after his conviction except in cases where the sentence has been suspended by the Court below itself. 14. Similar issue was there before this Court in Satish Tandon's case (supra) and in that case, accused-petitioner did not surrender before the appellate Court and was not present at the time of pronouncement of the judgment by the appellate Court. Against the judgment of conviction and order of sentence, revision petition was filed before this Court, wherein, it was held that in case the accused has not surrendered before the appellate Court, the revision petition would not be maintainable before the High Court. 15. In judgment of Madras High Court in Easwaramurthy's case (supra), it was held that revisional Court need not insist upon the confinement of the accused before ordering suspension of sentence. 15. In judgment of Madras High Court in Easwaramurthy's case (supra), it was held that revisional Court need not insist upon the confinement of the accused before ordering suspension of sentence. The relevant portion of that judgment is reproduced as under: "In view of the above said decision of the Hon'ble Supreme Court as well as the decision rendered by his Lordship Justice Khalid (as he then was), it is well settled that in respect of the revision against conviction and sentence, for granting the relief of suspension of sentence, the accused need not surrender and undergo confinement and filing revision without surrendering and confinement is well within the power contemplated under Section 397(1) of Cr.P.C. as that there is absolutely no ambiguity as the reading of the words "direct that execution of any sentence or order be suspended." In view of the above, I am of the considered view that in these matters, more particularly in respect of any revision against conviction that the accused need not surrender and undergo confinement for seeking the relief of suspension of sentence pending disposal of the criminal revision. The Courts are coming across the difficulties of the accused and more particularly in the cases under Section 138 of N.I. Act and other compoundable offences where there is possibility of compounding the offence within a short period and in such event, insisting upon the accused concerned to undergo the confinement for seeking the relief of suspension of sentence, may result in miscarriage of justice. 16. It was also held in aforesaid judgment of Madras High Court that revisional Court may decline to exercise power under Section 397(1), Cr.P.C. to suspend the sentence after considering the merits of each case. 17. In the present case, admittedly, the petitioner was not present at the time of hearing of the appeal and at the time of pronouncement of the judgment and appeal was dismissed in his absence. Even he did not surrender later on. Section 389, Cr.P.C. is reproduced 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. (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. (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. 18. As per provisions of Section 389, Cr.P.C., 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 in case the accused is in confinement then he can be released on bail. The power conferred by this section on an Appellate Court may be exercised also by the High Court in case of an appeal by convicted person of a Court subordinate thereto, when the convicted person satisfies the Court that he intends to file an appeal, the Court may suspend the sentence for a period not exceeding three years in case the offence is bailable and he is on bail then convict can be released on bail unless there are special reasons for refusing bail for such period to afford to file an appeal and obtain orders of the appellate Court. In such circumstances the sentence shall be deemed to be suspended. 19. In such circumstances the sentence shall be deemed to be suspended. 19. In the present case, the petitioner was not present before appellate Court at the time of pronouncement of the judgment and no sufficient reason has come forward for not appearing before the appellate Court. Learned Counsel for the petitioner has also not shown any sufficient reason or provision as to why he remained absent and why his surrender is not necessary for suspension of sentence. Inspite of undertaking given before this Court to deposit the amount of cheque in dispute, the petitioner has only deposited Rs. 30 lacs, whereas, the amount of cheque in dispute is Rs. 45 lacs. 20. Undisputedly the offence under which the petitioner has been convicted is bailable and moreover he has deposited an amount of Rs. 30 lacs out of total amount of Rs. 45 lacs and revision stands admitted. Neither the petitioner was present at the time of pronouncement of judgment before the lower appellate Court nor any justified reason has been explained for his absence before this Court while arguing the revision petition. Accordingly, the present application is disposed of with a direction that in case the petitioner surrenders before Trial Court/Duty Magistrate on or before 28.10.2014 and deposits remaining amount of Rs. 15 lacs, sentence imposed upon him shall remain suspended during the pendency of revision petition.