Subhash Chand vs Firm Jain @ Company, Padampur
2023 Latest Caselaw 2996 Raj

Citation : 2023 Latest Caselaw 2996 Raj
Judgement Date : 13 April, 2023

Rajasthan High Court - Jodhpur

Subhash Chand vs Firm Jain @ Company, Padampur on 13 April, 2023

Bench: Farjand Ali

[2023/RJJD/010050]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Application for Suspension of Sentence No.76/2023 IN S.B. Criminal Revision Petition No. 355/2023 Subhash Chand S/o Shri Sohan Lal, Aged About 56 Years, R/o Chak 2 Lc Tehsil Raisinghnagar Dist. Sri Ganganagar Raj. (At Present Lodged In Sub Jail Sri Karanpur)

----Petitioner Versus

1. Firm Jain @ Company, Padampur, Through Its Partner Surendra Kumar Jain S/o Shri8 Tara Chand Jain R/o Mandi Padampur Dist. Sri Ganganagar Raj.

2.        The State Of Raj., Through Pp
                                                                 ----Respondents


For Petitioner(s)         :     Mr. Trilok Joshi
For Respondent(s)         :     Mr. Mohd. Javed Gauri, PP
                                Mr. Mahesh Thanvi


               HON'BLE MR. JUSTICE FARJAND ALI
                                     Order
13/04/2023

The instant application for suspension of sentence has been

moved on behalf of the applicant petitioner in the matter of

judgment dated 08.06.2018 passed by the learned Additional

Chief Judicial Magistrate, Padampur, District Sri Ganganagar in

Criminal Case No.200/2012 whereby he was convicted and

sentenced to suffer 1 year simple imprisonment along with

compensation of Rs.17,50,000/- and in default of payment of

compensation 2 months simple imprisonment under Section 138

NI Act.

Learned counsel for the applicant submitted that neither

there was any due against the applicant petitioner nor any liability

was pending for which it can be said that the cheque was given by

[2023/RJJD/010050] (2 of 4)

the applicant to the complainant for discharge of the liability. It is

submitted that no plausible and convincing evidence has been

produced by the respondent complainant in the trial so as to

convince the conscience of the court that the amount was lent out

to the petitioner without any collateral security. It is not convinced

that whether the amount was given to him by handing over cash

currency notes or by any other mode. The complainant has failed

to produce the document on record to show that Rs.9,10,000/-

were endorsed by him in his income tax return preceding to the

financial year that the amount was allegedly given to the

petitioner. Learned counsel drew attention of this court to

admission made by complainant in cross-examination wherein he

categorically admit that there was no mentioning of any cash

transaction on Exhibit P1. If the amount was borrowed to the

petitioner then why for long two years no notice was given by the

complainant except presentation of cheque to the bank. It is

admitted that the voucher does not bear signature of the

petitioner. It is further contended on behalf of the applicant that

the learned trial Judge as well as learned court of appeal have 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.

Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the petitioner on application for suspension of sentence.

[2023/RJJD/010050] (3 of 4)

Learned counsel Shri Mahesh Thanvi, representing the

respondent-complainant vehemently and fervently made

objections to the submissions made by learned counsel for the

petitioner. He submits that the finding of the learned trial court is

well reasoned which is confirmed by the appellate court,

therefore, unless any illegality is pointed out no interference

should be made by this Court.

Heard learned counsel for the parties and perused the

material available on record.

Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly in my considered view the illegality of

the judgment impugned is seriously under question and which

would be required to be considered by this court and the same

shall be done at the final disposal of the revision petition, however,

looking to the circumstances that the petitioner is behind the bars

since 29.03.2023 and hearing of the petition would likely to take

long time and taking note of the overall submissions but 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.

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 Additional Chief Judicial Magistrate,

Padampur, District Sri Ganganagar who passed the impugned

order in Criminal Case No.200/2012 against the petitioner-

[2023/RJJD/010050] (4 of 4)

applicant Subhash Chand S/o Shri Sohan Lal 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 17.04.2023 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.