Phulla @ Phoolchand Yadav vs Gopal Singh Rajput
2021 Latest Caselaw 1647 MP

                                 1                                 CRR-954-2021
       The High Court Of Madhya Pradesh
                  CRR-954-2021
               (PHULLA @ PHOOLCHAND YADAV Vs GOPAL SINGH RAJPUT)

1
Jabalpur, Dated : 29-04-2021
      Heard through Video Conferencing.

      Shri Pramod Singh Tomar, learned counsel for the applicant.
      Shri Rahul Tripathi, learned P.L. for the respondent/State.

Heard on the question of admission.

Record of the Courts below is available.

Revision is admitted for final hearing.

Also heard on I.A.No. 5068/2021, an application for suspension of sentence and grant of bail to the applicant.

T h e revision has been preferred by the applicant against the judgment dated 17.03.2021 passed by 2nd Additional District & Sessions Judge Itarsi, District-Hoshangabad (MP), in Criminal Appeal No. 51/2019, whereby the learned appellate Court has dismissed the appeal and affirmed the judgment and conviction order dated 27.09.2019,

passed in Criminal Case No.201/2017 passed by JMFC, Itarsi (MP).

Applicant stands convicted for offence punishable under Section 138 of N.I. Act and has been sentenced to undergo R.I. for one year with compensation amount Rs. 5,30,000/- and under the provision of Section 359 of Cr.P.C., applicant has to pay amount of Rs. 10,000/- to the respondent. Default stipulation has been also imposed by the trial Court.

As per prosecution case, in short, is that on 16.05.2016, applicant borrowed of Rs. 4,00,000/- from the respondent. On the demanding the said amount by the respondent, applicant/accused gave a check bearing No. 178837 of Rs. 4,00,000/- to the respondent. When the respondent deposited the said cheque in the bank, the same was dishonoured with endorsement due to insufficient amount in the account of the applicant.

2 CRR-954-2021 The respondent issued notice to the applicant but they did not deposit the amount. Therefore, the respondent filed a criminal complaint under section 138 of the Negotiable Instrument Act against the applicant.

Learned counsel for the applicant submits that the prosecution has failed to prove his case beyond reasonable doubt. He further submits that

applicant is reputed citizen of locality and single earning person in his family. Applicant is in jail since 17.03.2021. There are material contradiction and omission in the statement of the prosecution witnesses. This revision is of year 2021. He is further submits that applicant has paid one lakh rupees to the respondent/complainant before the Appellant Court. It is a time of COVID-19 pandemic, due to this applicant/accused has no sufficient source of income but he has ready to deposit two lakhs rupees. It is time of COVID-19, due to which, trial will take time to conclude the same. There is fair chance to succeed in the revision. There is no likelihood of his absconding and tampering with the evidence of prosecution witnesses. Under the circumstances, if the execution of sentence of the applicant is not suspended, his right to file revision will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail to the present applicant-accused.

On the other hand, learned Panel Lawyer for the respondent-State opposes the submission of appellant's counsel and prays for rejection of application.

Heard and perused the record Having considered the argument advanced by learned counsel for the parties and the facts that applicant has paid one lakh rupees to the respondent/complainant before the Appellate Court and also applicant is ready to deposit Rs. 2,00,000/- of awarded compensation, passed by the trial Court. He is in jail since 17.03.2021, this revision is of year 2021, final hearing of this revision will take time. But without expressing any 3 CRR-954-2021 opinion on the merits of the case, I am of the considered opinion that it would be appropriate to suspend the custodial sentence awarded to the applicant and grant bail to him.

Consequently, I.A. No. 5068/2021 is allowed and it is directed that subject to depositing of Rs. 2,00,000/- before the trial Court, the sentence of the applicant is hereby suspended. It is also directed that on furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only), along with one solvent surety of like amount to the satisfaction of the trial Court. It is made clear that the deposited amount shall not be disbursed to the respondent without the leave of the Court.

The applicant Phulla @ Phoolchand Yadav shall appear and mark his presence before the trial Court on 17.06.2021 and shall continue to do so on all such future dates as may be given in this behalf, during pendency of the matter. It is also made clear that the amount so deposited by the applicant shall be kept as a Fixed Deposit in nearby Nationalized Bank.

Issue notice to the respondent on payment of P.F. within a period of seven days by both modes, returnable within two weeks.

In view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020, it would be appropriate to issue the following direction to the jail authority :-

1. The Jail Authority shall ensure the medical examination of the applicant by the jail doctor before his release.

2 . The applicant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3 . If it is found that the applicant is suffering from 'Corona Virus 4 CRR-954-2021 disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.

List the case for final hearing in due course.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

L.R.

Digitally signed by LALIT SINGH RANA Date: 2021.04.30 16:47:33 +05'30'