Rajendra Sharma vs Ishwar Lal
2024 Latest Caselaw 15985 MP

Madhya Pradesh High Court

Rajendra Sharma vs Ishwar Lal on 29 May, 2024

Author: Prem Narayan Singh

Bench: Prem Narayan Singh

                                                               1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                       CRR No. 2303 of 2024
                                                     (RAJENDRA SHARMA Vs ISHWAR LAL)

                          Dated : 29-05-2024
                                 Shri Prashant Sharma, learned counsel for the Petitioner .

                                 Shri Shahid Shaikh, learned counsel for the Respondent [R-1].

1. Heard on I.A.No.8459/2024 an application for exemption from surrendering before the trial Court and for suspension of sentence and grant of bail filed on behalf of the applicant.

2. This revision is preferred against the order of conviction whereby the

applicant has been convicted for offence under Section 138 of Negotiable Instrument Act and sentenced to undergo six months simple imprisonment with compensation of Rs.3,20000/-.

3 . Learned counsel for the applicant submits that the applicant due to illness could not appear before the trial Court at the time of pronouncement of judgment. It is further submitted that the petitioner is an old person aged about 64 years and the respondent has compromised the case with the petitioner. hence, the case of the present applicant can be treated as exceptional case and he may be exempted from surrendering before the trial Court.

4. As per Rule 48 Chapter X of High Court of M.P. Rules, 2008, the revision memo should contain the declaration that the applicant has surrendered before the Court below before consideration of application for suspension of jail sentence.

5. Learned counsel for the applicant relying on the judgment passed by Apex Court in the matter of Vivek Rai and another vs. High Court of Jharkhand (2015) 12 SCC 86 and submits that applicant may be exempted

from surrendering before the trial Court and revision is maintainable.

7. In light of the aforesaid judgment, he further submits that Rule 48 of the High Court of M.P. Rules, 2008 is pari materia with the Rule 159 of Jharkhand High Court. In this Rule also the applicant is required to be surrendered before the trial Court and declaration to that effect should be filed alongwith revision memo while interpreting the said Rule.

8. The Apex Court in the case of Vivek Rai (Supra) has held that this rule does not affect the inherent powers of the High Court to exempt the applicant from surrendering in exceptional cases.

9. In light of the aforesaid, learned counsel for the applicant prayed that

the applicant may be exempted from surrendering before the trial Court. He has further relied upon the order dated 23.07.2019 in Cr.R.No.3467/2019 (Smt. Lata W/o Nitin Khandelwal vs. Manjul S/o Satyaprakash Saxena) and order dated 07.11.2016 in Cr.R.No.2535/2016 (Gulab Singh Vs. Mahindra and Mahindra Financial Service Ltd.) .

10. Heard learned counsel for the applicant and perused the record.

11. A question in the present case that arose is whether sentence can be suspended despite the fact that applicant has not surrendered before the Court below.

11. Chapter X of Section 48 of High Court of M.P. Rules, 2008 read thus :-

"48. A memorandum of appeal or revision petition against conviction, except in cases where the sentence has been suspended by the Court below, shall contain a declaration to the effect that the convicted person is in custody or has surrendered after the conviction. Where the sentence has been so suspended, the factum of such suspension and its period shall be stated in the memorandum of appeal or revision

petition, as also in the application under Section 389 of Code of Criminal Procedure, 1973.

An application under Section 389 of Cr.P.C. shall, as far as possible, be in Format No.11 and shall be accompanied by an affidavit of the appellant/applicant or some other person acquainted with the facts of the case.â​​

12. As per the rules which are framed by Jharkhand High Court Rule 159, also requires surrender of the accused before the Court below.

13. Considering the aforesaid Rules, the Hon'ble Supreme Court in Vivek Rai (Supra) in para 10 and 11 has held as under :-

"10. Only further submission put forward is that inherent power of the Court to direct listing of the case by exempting the requirement of surrender has been taken away. It is pointed out that even in Supreme Court Rules prohibition against listing without surrender is not applicable if the Court otherwise directs. Such exception is not to be found in the impugned Rule.

11. 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 t o 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 applicant, 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."

14. As per the judgment passed by Hon'ble Apex Court in exercise of

inherent powers of High Court, the High Court can consider it appropriate to exempt the accused from surrendering before the Court below having regard to the nature and circumstances of the case.

1 5 . The present case is related to the Offence under Section 138 of Negotiable Instruments Act and the applicant is an old age person having

various health issues in support of which, the petitioner has filed documents regarding treatment of petitioner. Therefore, in view of the aforesaid contentions and documents, treating the case of the applicant as exceptional, (I.A.No.8459/2024) is allowed and the applicant is exempted from surrendering before the trial Court.

16. Thus, in the facts and circumstances of the case, without expressing any opinion on the merits of the case, the application (I.A.No.7690/2024) for suspension of jail sentence is allowed subject to depositing Rs.3,20000/- by cheque/DD or cash by the applicant before the trial Court within a period of one month from today. It is directed that on furnishing personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before this Court/Registry on 18.12.2024 and on all other subsequent dates, as may be fixed by the Registry in this behalf, the execution of substantial jail sentence imposed on the applicant shall remain suspended, till the final disposal of this revision, subject to complying the condition mentioned above.

17. It is made clear that in case of failure in depositing the aforesaid remaining amount within the stipulated period, this order shall ineffective automatically, this revision petition shall be dismissed as per Chapter X of Section 48 of High Court of M.P. Rules, 2008 as non-maintainable, without further reference to this Court and the learned trial Court would be at liberty proceed in accordance with law.

18. A copy of this order be sent to the Court concerned for its compliance.

19. Both the parties submits that they have compromised the case and prays for verification.

20. Both the parties are directed to appear before the Principal Registrar of this Court on 03.07.2024 for verification of the compromise.

21. List alongwith the verification report in the second week of July, 2024, In the meantime, record be called for.(PREM NARAYAN SINGH)

JUDGE

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