Rajasthan High Court
Shankarlal Agarwal Son Of Shri Late Shri ... vs State Of Rajasthan on 15 December, 2023
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2023:RJ-JP:40184]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Suspension of Sentence Application (SOSA)
No.569/2023.
In
S.B. Criminal Revision Petition No. 1898/2023
Shankarlal Agarwal Son of Shri Late Shri Damodar Lal Agarwal,
Aged About 61 Years, Proprietor Of Rajasthan Handicraft Center,
Resident Of Plot No. 9 Shyam Kunj, Khetdi House, Chandpole,
Jaipur (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan, through Public Prosecutor
2. Shri Khandaka Son of Shri Madan Lal Khandaka, R/o at
3014, Jat Ke Kyu Ka Rasta, Chandpol Bazaar, Jaipur.
----Respondents
For Petitioner(s) : Mr. Ajay Shukla
For Respondent(s) : Mr. M.K. Sheoran, PP
Mr. Amit Gupta
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
15/12/2023
1. 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
[2023:RJ-JP:40184] (2 of 9) [CRLR-1898/2023]
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 Vs.
Bheemappa.
[2023:RJ-JP:40184] (3 of 9) [CRLR-1898/2023]
B. Special Leave to Appeal (Crl.) Nos.5621/2022:
Ashok Kumar Sharmar Vs. The State of Rajasthan & Anr.
C. 2011(1) RLW 659 (Raj.): Vishnu Teli Vs. State of
Rajasthan & Anr.
D. 2023 0 Supreme (SC) 855: Jamboo Bhandari Vs.
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. Vs. The State of Bihar
and (2015) 12 SCC 86 Vivek Rai & Anr Vs. 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 Vs. State of Bombay and
held that: -
[2023:RJ-JP:40184] (4 of 9) [CRLR-1898/2023]
"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. 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
561 A Criminal Procedure Code shall also contain a
[2023:RJ-JP:40184] (5 of 9) [CRLR-1898/2023]
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 sub-
section (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
[2023:RJ-JP:40184] (6 of 9) [CRLR-1898/2023]
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. 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
[2023:RJ-JP:40184] (7 of 9) [CRLR-1898/2023]
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. 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's 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
[2023:RJ-JP:40184] (8 of 9) [CRLR-1898/2023]
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. 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.
[2023:RJ-JP:40184] (9 of 9) [CRLR-1898/2023]
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.
(PRAVEER BHATNAGAR),J
161-/DHARMENDRA RAKHECHA
Powered by TCPDF (www.tcpdf.org)
