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2023 DIGILAW 2265 (RAJ)

Shankarlal Agarwal v. State of Rajasthan

2023-12-15

PRAVEER BHATNAGAR

body2023
ORDER : Praveer Bhatnagar, J. The accused-petitioner Shankarlal Agarwal has preferred an application under Section 389 Cr.P.C for suspending the sentence during the pendency of the criminal revision filed against the order and judgment dated 18.11.2023 passed by learned Additional Sessions Judge No.2, Jaipur Metropolitan First, in Criminal Appeal No.05/2020 whereby, judgment dated 05.12.2019 passed by Special Metropolitan Magistrate (N.I. Act Cases) No.11, Jaipur Metropolitan, Jaipur was affirmed and accused-petitioner was convicted for the offences under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act of 1881") and was sentenced to undergo one year simple imprisonment with a fine of Rs. 14,00,000/-, in default of payment of fine which he was further ordered to undergo three months' simple imprisonment. 2. Learned counsel for the accused-petitioner submits that accused-petitioner has wrongly been convicted and sentenced by the learned appellate court. He further submits that complainant has admitted that he has received Rs. 2,00,000/- and only Rs. 7,17,500/- is in balance. The amount is not related to complainant's company and related to other company viz M/s Rakesh Textile. Thus, there is merit in his case and decision of revision petition may take considerable time and application of the accused-petitioner for suspending the sentence may be allowed. The accused-petitioner has deposited the amount under Section 138 of the Act of 1881 before the learned appellate court while preferring the appeal against the conviction and sentence, recorded by the learned trial court. He further submits that due to some unavoidable circumstances he could not marked his presence before the learned appellate court. Rule 311 of the Rules of the High Court of Judicature for Rajasthan (hereinafter referred to as "the Rules") is not mandatory and right of the accused-petitioner cannot be obliterated. He also argues that learned appellate court vide impugned judgment dated 18.11.2023 at page 23 has directed the appellant to appear before the learned trial court for undergoing the sentence, therefore, the application of accused-petitioner may be allowed. He places reliance on the following judgments: - A. 2021 (0) Supreme (SC) 1115 R. Kalai Selvi v. Bheemappa. B. Special Leave to Appeal (Crl.) Nos.5621/2022: Ashok Kumar Sharmar v. The State of Rajasthan & Anr. C. 2011 (1) RLW 659 (Raj.): Vishnu Teli v. State of Rajasthan & Anr. D. 2023 (0) Supreme (SC) 855: Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. & Ors. 3. B. Special Leave to Appeal (Crl.) Nos.5621/2022: Ashok Kumar Sharmar v. The State of Rajasthan & Anr. C. 2011 (1) RLW 659 (Raj.): Vishnu Teli v. State of Rajasthan & Anr. D. 2023 (0) Supreme (SC) 855: Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. & Ors. 3. Learned counsel appearing for the complainant submits that this application is not maintainable and learned appellate court has no power to grant relaxation to the accused-petitioner after affirming the judgment of conviction and sentence passed by the learned trial court. He further submits that in view of the Rule of 311 it is obligatory upon the accused-petitioner to surrender before the concerned trial court for undergoing the sentence. He further contends that the certificate given by the accused-petitioner is not in accordance with the Rule of 311 (3). He placed reliance on the judgment passed in Patna High Court's judgment dated 14.09.2023 passed in Criminal Revision No.176/2023: Shivjag Paswan & Ors. v. The State of Bihar and (2015) 12 SCC 86 Vivek Rai & Anr v. High Court of Jharkhand through Registrar General. Therefore, application for suspension of sentence may be dismissed. 4. Heard learned counsel for both the parties, perused the material available on record and gone through the judgments cited by both the parties. 5. Hon'ble the Apex Court in the matter of Vivek Rai (supra) while interpreting the Rule 159 of the Jharkhant High Court, relied upon the judgment of K.M. Nanawati v. State of Bombay and held that: - "It is well known practice that generally a revision against conviction and sentence is filed against an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, with the substantive provisions of the Cr.P.C relied upon by the petitioners." 6. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, with the substantive provisions of the Cr.P.C relied upon by the petitioners." 6. Rule 311 of the Rules of the High Court of Judicature for Rajasthan reads as under: - "(1) Every petition of appeal or application for revision shall state- (a) the name and, where the appeal or revision is not on behalf of the State, the address of each appellant or applicant; (b) the name and, where the opposite party is not the State, the address of each opposite party; (c) the Court from whose order the appeal or revision is filed and the name of the presiding officer of such Court; (d) the nature of the order passed including the sentence awarded, if any, by such Court; (e) the provision of law defining the offence of which the accused person was convicted or acquitted by such Court or under which he was dealt with by such Court; (f) the ground or grounds, numbered consecutively, of objection to the order from which the appeal or revision is filed; and (g) the relief sought; and shall be signed by the appellant or the applicant, as the case may be, or by an Advocate on his behalf. (2) A petition of appeal from an appellate order of acquittal or an application for the revision of an order passed in appeal or revision shall also state the name and description of the Court which tried the case in the first instance and the nature of the order passed by it. (3) In a case in which a sentence of imprisonment has been awarded, the petition of appeal or the application for revision or an application under section 561A Criminal Procedure Code shall also contain a certificate signed by the Advocate for the appellant or the applicant, as the case may be, stating that the accused was not on bail or that, if he was on bail, he has surrendered to it. In a case in which bail has been granted by the Court appealed from under subsection (2A) of section 426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal." 7. In a case in which bail has been granted by the Court appealed from under subsection (2A) of section 426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal." 7. Rule 159 of the Jharkhand High Court is almost pari materia to the Rule 311 of the Rules. Learned appellate court vide impugned judgment dated 18.11.2023 has affirmed the conviction order passed by the learned trial court while maintaining the sentence of the accused-petitioner under Section 138 of the Act of 1881, in absence of the accused-petitioner, learned trial court also directed the accused-petitioner to surrender himself within a month before the trial court to undergone the sentence. 8. Undoubtedly, the accused-petitioner did not appear before the learned appellate court. Though the accused-petitioner has annexed the certificate, further the certification is not in conformity with Rule 311 of the Rules. The certificate appended to the revision petition is as under: - "This is to certify that Shankarlal Agarwal Son of Shri. Late Shri. Damodar Lal Agarwal, aged about 61 years, By caste Mahajan, Resident of Plot No. 9, Shyamkunj, Khetdi House, Chandpole, Jaipur (Rajastghan) was during Trial on Bail. He has been convicted for the offence under section 138 of the Negotiable Instruments Act and has been sentenced for simple imprisonment of one year alongwith fine of Rs. 14,00,000/- and in case of default in the payment of the fine, further simple imprisonment of three month. The said sentence has been upheld by Appellate Court. Accused was not present on the date on which Appellate Court pronounced its judgment so directions were issued that the accused may present himself before the Trial Court within a period of one month. He is not in custody as the Appellate Court has itself suspended period for one month by given liberty to the accused to present himself before the trial court in one month." 9. The Hon'ble Apex Court in the matter of Vivek Rai (supra) further expressed as under: - "It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. The Hon'ble Apex Court in the matter of Vivek Rai (supra) further expressed as under: - "It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It cannot thus, be argued that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case. Thus, the exception as found in corresponding Supreme Court Rules that if the Court grants exemption from surrender and directs listing of a case, the Rule cannot stand in the way of the Court's exercise of such jurisdiction, has to be assumed in the impugned Rule." 10. Thus, the law laid down by Hon'ble the Apex Court does not preclude to suspend the sentence even though the accused-petitioner did not surrender before the learned appellate court only in exceptional cases. It is further to state that, the power of learned appellate court for suspending the sentence pending appeal and for release of appellant on bail is defined in Section 389 (1) Cr.P.C. The said provision empowered the learned appellate court to suspend the sentence after judgment of conviction and order of sentence passed by the learned trial court. There is no provision in Criminal Procedure Code empowering the appellate court to grant time or enlarge the accused-petitioner on bail, after disposal of appeal and confirmation of conviction and sentence, to enable the appellant to prefer revision application before the trial court and to obtain necessary order. 11. The same question arose before the Patna High Court in Criminal Revision Petition No.176/2023 and vide order dated 14.09.2023 the Patna High Court held that appellate court cannot grant bail after confirmation of conviction and sentence to the accused-petitioner, for preferring the revision application before the High Court. The bare provision of Section 389 Cr.P.C explicitly empowers the learned appellate court to enlarge the accused-petitioner on bail during the pendency of the appeal. The bare provision of Section 389 Cr.P.C explicitly empowers the learned appellate court to enlarge the accused-petitioner on bail during the pendency of the appeal. Therefore, the impugned order by which the learned appellate court has granted one month time to the accused-petitioner to surrender before the trial court is not in accordance with the provisions of Section 389 Cr.P.C. 12. In the instant matter, the accused-petitioner remained absent in the appeal and the learned appellate court while affirming the conviction passed the sentence to undergo one year's simple imprisonment alongwith fine in tune of Rs. 14,00,000/- and in default of payment, further ordered to undergo three months simple imprisonment. Admittedly, accused-petitioner was prosecuted under Section 138 of the Act of 1881, to realise the amount in tune to Rs. 9,17,500/-. The circumstances of the case do not fall within the ambit of exceptional cases. The complainant is facing the trauma of litigation for last nine years and the accused-petitioner did not make any endeavour to enter into an amicable settlement. He has not paid a penny to the respondent apart from the amount imposed by the learned appellate court under Section 148A of the Act of 1881. Even presuming it to be a civil dispute between the parties, the accused-petitioner did not take any measure to settle the same. If such leverage is provided to the accused-petitioner then surely it would amount to a miscarriage of justice and unethical litigant would try to evade and disrespect the decision of the appellate court in apprehension that they may be convicted and sentenced. The Act has been amended from time to time so as to provide speedy disposal of cases relating to the offence of dishonour of cheques. So as to see that due to delay tactics by the unscrupulous litigants of dishonour of cheques due to easy filing of appeal, revision etc., and obtaining a stay in the proceedings, an injustice is caused to the payee of the dishonoured cheque, who has to spend considerable time and resources in the courts proceedings to realise the value of cheque and having observed that said delay has compromised the sanctity of the cheque transaction. 13. In the matter of Ashok Kumar Sharma (supra) the Hon'ble Apex Court stayed the effect and operation of impugned order requiring to deposit 20% of the fine amount. 13. In the matter of Ashok Kumar Sharma (supra) the Hon'ble Apex Court stayed the effect and operation of impugned order requiring to deposit 20% of the fine amount. In the matter of Jamboo Bhandari (supra) the Hon'ble Apex Court held that it is always open for the appellate court to consider whether it is an exceptional case which warrant grant of suspension of sentence without imposing conditions of deposit of 20% of the fine /compensation amount. 14. The controversy in the present matter is not with regard to imposition of 20% of cheque amount before preferring the appeal. The controversy in the present matter is related to the interpretation of Rule 311 of the Rules and powers of revisional court to suspend the sentence till pendency of the criminal revision, therefore, the law cited by the learned counsel for the petitioner is not applicable in the present matter. 15. Learned counsel for the petitioner has also placed reliance on the judgment passed by the coordinate Bench of this Court in the matter of Vishnu Teli (supra). The coordinate Bench has held that the certificate provided under the Rules is not in conflict with the provisions of Section 397 Cr.P.C, the Court in exceptional circumstances may suspend the sentence without obtaining the surrender certificate. It was further held that non surrender of the appellant or revisionist would not make the appeal or the revision "non-maintainable". The non-surrender would merely mean that the appeal or the revision has not been presented properly before the registry. It was further held under Section 138 of the Act is not purely punitive and it is only to ensure that due amount is duly returned to the complainant. 16. I have already narrated the circumstances, which disentitle the accused-petitioner to obtain any relief. Therefore, I am of the considered view that in present matter without surrendering before the learned appellate court the accused-petitioner's application for suspending the sentence cannot be entertained. 17. Resultantly, the accused-petitioner is directed to surrender before the court concerned and file surrender certificate within a period of four weeks. Non filing of the surrender certificate in terms of Rule 311 of the Rules within the aforesaid period, shall result in dismissal of the criminal revision without further reference to the Bench. 18. The instant suspension of sentence application is accordingly disposed of.