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Madhya Pradesh High Court · body

2020 DIGILAW 1254 (MP)

Harish Sharma v. State of M. P.

2020-12-03

VISHNU PRATAP SINGH CHAUHAN

body2020
ORDER 1. Applicant has filed this criminal revision under section 397 read with section 401 of CrPC being aggrieved by the impugned order dated 14.9.2015 passed in Criminal Appeal No.484/2013 by learned 16th Additional Sessions Judge, Bhopal whereby learned appellate Court dismissed the appeal filed by the applicant being aggrieved by the judgment of conviction and order of sentence dated 8.4.2013 passed by the Court of JMFC for the offence under section 138 of Negotiable Instruments Act. 2. It is not disputed that respondent No.2 Rakesh Guda filed a complaint against the applicant-Harish Sharma under section 138 of Negotiable Instruments Act (in short ‘the N.I. Act’) alleging therein that the applicant received Rs.five lakh from the complainant and for payment of that amount, the applicant provided a cheque to respondent No.2/complainant. When the complainant/respondent No.2 submitted that cheque in the bank for realization, the cheque was dishonoured and returned to respondent No.2 with an endorsement that ‘no sufficient fund’ was available in the account of the applicant for realization of the cheque. Thereafter respondent No.2 served a legal notice to the applicant for depositing the cheque amount, but, applicant failed to deposit the amount in time, then respondent No.2 filed a complaint under section 138 of N.I. Act against the applicant before the Court of JMFC, Bhopal where case was registered as R.T. No.6011/2005. Learned trial Court after completing trial delivered judgment on 8.4.2013 and found the applicant guilty of the offence punishable under section 138 of N.I. Act, therefore, convicted him and sentenced him to undergo one year R.I. and under sub-section (3) of section 357 of CrPC directed the applicant to pay Rs.ten lakh as compensation to respondent No. 2 with default stipulation. 3. Being aggrieved by that conviction and sentence, the applicant preferred an appeal before the appellate Court registered as Criminal Appeal No. 484/2013 in which the applicant was granted benefit of section 389(1) of CrPC and his jail sentence was suspended till disposal of the appeal subject to deposition of Rs.one lakh before the trial Court. However, during pendency of this appeal, the applicant remained absent to prosecute that appeal and the appellate Court found that applicant had not complied with the direction of depositing Rs.one lakh before the trial Court and also found that appellant had changed his address and resided in another address so as to avoid execution of arrest warrant. However, during pendency of this appeal, the applicant remained absent to prosecute that appeal and the appellate Court found that applicant had not complied with the direction of depositing Rs.one lakh before the trial Court and also found that appellant had changed his address and resided in another address so as to avoid execution of arrest warrant. In these circumstances, appellate Court passed the impugned order dated 14.9.2015 directing to start recovery of compensation amount from the applicant and also directed to sent him jail for undergoing the sentence awarded by the trial Court. In compliance of the arrest warrant issued by the trial Court, the applicant was arrested and sent to jail for undergoing the awarded sentence. Learned appellate Court vide impugned order dated 14.9.2015 also dismissed the appeal without assigning any reason. 4. No doubt, appellate Court registered Criminal Appeal being No.484/2013 and suspended the sentence of appellant under section 389(1) of CrPC, meaning thereby that this appeal was admitted for final hearing. But, by this impugned order, learned appellate Court found that the applicant has not complied with the directions issued by it while disposing of the application filed under section 389(1) of CrPC and directed the trial Court to comply with the order of sentence passed against the applicant. However, in that impugned order, learned appellate Court added the sentence ^^Qyr% vihy [kkfjt dh tkrh gS Aa^^ , this Court finds that while dismissing the appeal by this impugned order, learned appellate Court has not assigned single reason in this regard. 5. It is worth mentioning here that while perusing the impugned order dated 14.9.2015, it is reflected that at the time of passing the impugned order, counsel for the complainant or complainant who is respondent No.2 herein, was also not present. A.G.P. appeared on behalf of the State. No doubt, in the above situation, this Court is constrained to set aside the impugned order and remit the matter back to the appellate Court for deciding the appeal as per law. 6. Accordingly, this revision is allowed. The impugned order dated 14.9.2015 passed in Cr.A. No.484/2013 by 16 th Additional Sessions Judge, Bhopal is hereby set aside and the matter is remitted back to the appellate Court for deciding the appeal as per law. 7. 6. Accordingly, this revision is allowed. The impugned order dated 14.9.2015 passed in Cr.A. No.484/2013 by 16 th Additional Sessions Judge, Bhopal is hereby set aside and the matter is remitted back to the appellate Court for deciding the appeal as per law. 7. Since the applicant is in jail, let copy of this order be sent to the applicant for engaging counsel for prosecuting the appeal before the trial Court. In case the applicant fails to appoint any counsel on his behalf, the appellate Court may appoint a counsel on ‘State Expenses’ for prosecuting the appeal on behalf of the applicant and the appellate Court is directed to prosecute this appeal further as per law. The applicant is further directed to deposit 20% of the compensation awarded by the trial Court in accordance with section 148 of N.I. Act within sixty days from the date of passing of this order. In case the applicant fails to deposit this amount, trial Court is free to recover that amount. Vinod Kumar Mishra for applicant; N.S. Solanki, Panel Lawyer for respondent No.1/State; Ravendra Shukla for respondent No.2.