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2020 DIGILAW 410 (RAJ)

Sunil v. State

2020-02-24

VIJAY BISHNOI

body2020
JUDGMENT 1. This criminal revision petition has been preferred on behalf of the petitioner being aggrieved with the order dated 21.8.2015 passed by the learned Additional Chief Judicial Magistrate, Vallabhnagar, District Udaipur (for short the trial court) whereby, the trial court has convicted the petitioner for the offence punishable under Section 138 of the N.I. Act. The petitioner has also challenged the order dated 14.5.2019 passed by learned Additional Sessions Judge (Women Atrocities Cases), Udaipur (for short the appellate court) whereby, the appellate court upheld the order dated 21.8.2015 passed by the trial court. 2. Learned counsel for the petitioner has submitted that compromise has been arrived at between the parties on 17.1.2020 and as per the said compromise, the petitioner has paid the whole amount to the respondent No.2. Learned counsel for the petitioner has further submitted that in view of the fact that the parties have entered into compromise, the impugned orders may kindly be set aside and the petitioner be acquitted from the charge of offence punishable under Section 138 of the N.I. Act. 3. The petitioner has not surrendered pursuant to the impugned judgments. 4. Learned counsel for the petitioner while placing reliance on the judgment passed by a co-ordinate Bench of this Court in the case of Vishnu Teli Vs. State of Rajasthan, reported in 2011 (1) RLW 659 (Raj.) has argued that though the petitioner has not surrendered but the revision petition filed by him against the impugned orders is very much maintainable. 5. A co-ordinate Bench of this Court at Jaipur Bench in Vishnu Telis case (supra) has held as under :- '10. A distinction has to be made between 'presentability of a petition' and 'maintainability of a petition.' Presentability of a petition deals with the 'acceptability' of a petition by the registry. In case, there are any defects in the body of the petition, or in the paper book, the registry is empowered to point out the 'defect' and claim that because of the 'defect', the petition cannot be accepted. 11. However, 'maintainability' of a petition deals with whether the petition can be heard under the law or not? Therefore, the submission of the certificate or the lack of such certificate with the body of the petition adversely affects only its 'presentability' before the registry itself. It does not and cannot affect its 'maintainability' under the law before the Court. 11. However, 'maintainability' of a petition deals with whether the petition can be heard under the law or not? Therefore, the submission of the certificate or the lack of such certificate with the body of the petition adversely affects only its 'presentability' before the registry itself. It does not and cannot affect its 'maintainability' under the law before the Court. The maintainability of a revision petition would have to be seen in the light of Section 397 read with Section 401 Cr.P.C. Section 397(2) prohibits the filing of a revision petition against an interlocutory order. In case, a revision petition were to be filed against an interlocutory order, according to Section 397(2) Cr.P.C., the said petition is 'not maintainable' although such a petition may be presentable, if it were accompanied with the requisite documents/papers. Thus, it seems to be a misnomer that in case the said certificate does not shows the fact that the revisionist has surrendered, the petition, ipso facto, become 'not maintainable'. In fact, in case the petition is not accompanied with such a certificate, the petition merely becomes non-presentable by the registry. 12. The words 'if he was on bail, he has surrendered to it' cannot be stretched to the point that these words require that the revisionist/appellant must surrender himself prior to filing his revision or appeal. If these words were interpreted to mean that the appellant or the revisionist must surrender prior to filing the appeal or the revision, such an interpretation would lead to anomalous situations: firstly, in case where the trial Court itself has suspended the sentence for a limited period, and in case the appellant or the revisionist were to file the appeal or the revision petition during the said period, it would be an anomalous situation to insist that although the sentences stands suspended, the appellant/revisionist must surrender. Such a situation would be quixotic for while a part of the judiciary suspends the sentence, the other part of the judiciary expects the appellant to surrender during the period of suspension of sentence. 13. Secondly, since there is no such requirement under Section 374 or under Section 397 read with Section 401 and 374 Cr.P.C. prior to filing of appeal/revision petition, the rules cannot be permitted to insert a condition which does not exist in the parental law. 14. Thirdly, such an interpretation of the rules would make the rules unconstitutional. 13. Secondly, since there is no such requirement under Section 374 or under Section 397 read with Section 401 and 374 Cr.P.C. prior to filing of appeal/revision petition, the rules cannot be permitted to insert a condition which does not exist in the parental law. 14. Thirdly, such an interpretation of the rules would make the rules unconstitutional. For, such a rule would jeopardize the personal liberty of a person. Moreover, such a rule would be against the concept of 'due process of law' as contained in Article 21 of the Constitution of India. Therefore, an interpretation which leads either to anomalous situation, or to the declaration of a provision of law as unconstitutional, such an interpretation should be avoided like the plaque. 15. Therefore, this Court is of the opinion that the non-surrender of the appellant or revisionist would not make the appeal or the petition 'non-maintainable'. The non-surrender would merely mean that the appeal or the petition has not been presented properly before the registry. Therefore, the preliminary objection raised by the learned Public Prosecutor is unacceptable.' In view of the above, the office objections are overruled. 6. Learned counsel for the respondent No.2 has verified that the matter has been compromised between the parties and the due amount has already been paid by the petitioner to the respondent No.2. 7. Section 147 of the N.I. Act reads as under :- 'Section 147. Offences to be compoundable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.' As per Section 147 of the N.I. Act, every offence punishable under this Act is compoundable. 8. In the above facts and circumstances of the case, this criminal revision petition is allowed. The impugned orders are set aside. The petitioner is acquitted from the charge under Section 138 of the N.I. Act. 9. However, in view of the judgment passed by the Honble Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H., reported in AIR 2010 SC 1907 , the petitioner is directed to deposit 15% of the cheque amount by way of cost before the Legal Services Authority, Udaipur within a period of 15 days from today. 10. However, in view of the judgment passed by the Honble Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H., reported in AIR 2010 SC 1907 , the petitioner is directed to deposit 15% of the cheque amount by way of cost before the Legal Services Authority, Udaipur within a period of 15 days from today. 10. A copy of this order be sent to the Legal Services Authority, Udaipur with a remark that if 15% of the cheque amount is not deposited by the petitioner within the stipulated time, the Legal Services Authority, Udaipur shall brought this fact into notice of this Court.