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2023 DIGILAW 1304 (RAJ)

Harak Chand Bansal v. Bhagwat Singh Rathore

2023-07-05

FARJAND ALI

body2023
ORDER : Farjand Ali, J. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 08.06.2022 passed by the learned Special Judicial Magistrate, NI- 1, Udaipur in Case No.889/17 whereby he was convicted and sentenced to suffer six months' simple imprisonment and to pay compensation to the tune of Rs.1,25,00,000/- as per provisions under section 138 of NI Act 2. Learned counsel submits that prima facie the allegations levelled in the complaint and further deposed by the complainant in the trial seems to be highly dubious and absurd since he was serving as a class IV employee and has failed to convincingly establish the fact that how a sum of Rs.1 crore and more in case was available with him to let out to the petitioner. The complainant has utterly failed to show the source from which he got received the aforesaid amount. He also contends that it is also not comprehensible as to how a transaction of cash amount of more than one crore can be borrowed or lent out for a period of 8 years among the parties of financial status as the petitioner and respondents belong to. It is further submitted that despite there being presumption under section 139 of Negotiable Instruments Act, the initial burden always lies upon the complainant to establish the fact by producing clinching and cogent evidence that the cheque was given by the accused to him against any legal debt or liability. 3. It is further contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court and hearing of the revision is likely to take long time, therefore, the application for suspension of sentence may be granted. 4. Per contra, learned PP has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the petitioner on application for suspension of sentence. 5. Heard learned counsel for the parties and perused the material available on record. 6. 4. Per contra, learned PP has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the petitioner on application for suspension of sentence. 5. Heard learned counsel for the parties and perused the material available on record. 6. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the fact that the hearing of revision is likely to take further more time and considering the overall submissions while refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the revision, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused-petitioner. 7. Accordingly, the application for suspension of sentence filed under Section 397 Cr.P.C. is allowed and it is ordered that the sentence passed by learned Special Judicial Magistrate, NI-1, Udaipur who passed the impugned order in Case No.889/17 against the petitioner-applicant Harak Chand Bansal S/o Late Sh. Rameshwarlal Bansal shall remain suspended till final disposal of the aforesaid revision and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 05.08.2023 and whenever ordered to do so till the disposal of the revision on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.