Rajasthan High Court

Pushpendra Mohan Pathak Son Of Shri ... vs Rambabu Gupta Son Of Late Shri Nanagram on 5 March, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

[2024:RJ-JP:11447]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

      S.B. Criminal Misc. (Suspension of Sentence) Application
                                  No.26/2024

                                         In

              S.B. Criminal Revision Petition No. 51/2024

Pushpendra Mohan Pathak Son Of Shri Jagdish Prasad Pathak,
Aged About 55 Years, Resident Of 12B-39, Ganesh Path,
Ramnagr, Sodala, Jaipur (Raj)
                                                                    ----Petitioner
                                     Versus
Rambabu Gupta Son Of Late Shri Nanagram, Resident Of Plot No.
136, Gandhi Vihar Colony, Airport Road, Sanganer, Jaipur (Raj)
                                                                  ----Respondent

For Petitioner(s) : Mr. Deendayal Khandelwal For Respondent(s) : Mr. Devendra Jain

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

05/03/2024

1. The matter comes upon an application for overruling the

defect pointed out by the Registry. Registry has pointed out the

following defects:-

" (i) Certificate under Rule 311(3) is not according to Rule 2.

(iii) It is time barred by 658 days and an application under

Section 5 of Limitation Act has been filed"

2. Learned counsel for the petitioner submits that compromise

(Annexure -3) have been arrived at between the parties and as per

the said compromise, petitioner has paid the entire cheque

amount to the respondent Rambabu Gupta son of Late Shri

Nanagram.

[2024:RJ-JP:11447] (2 of 5) [CRLR-51/2024]

3. He further submits that in view of the fact that parties have

entered into compromise. The defect pointed out by the Registry

for not annexing the certificate under Section 313(3) of the

Rajasthan High Court Rules for condoning the delay of 658 days

may be overruled and application for suspending the sentence of

the petitioner may be allowed.

4. Learned counsel appearing on behalf of Rambabu Gupta son

of Late Shri Nanagram accepts that parties have arrived at

compromise and respondent has no objection, if the sentence of

petitioner is suspended.

5. It is admitted position that the petitioner has not surrendered

before the concerned trial Court.

6. The petitioner was convicted and sentenced by the learned

Additional Chief Metropolitan Magistrate No.10, Jaipur Metropolitan

vide impugned judgment dated 02.05.2019 and in appeal the

conviction of petitioner under Section 138 of the NI Act was

maintained and petitioner was sentenced as under:-

Section 138 of N.I. Act:

One years' simple imprisonment along with fine of Rs.1,20,000/- and in default of payment of fine to further undergo for one months' additional S.I.

7. Rule 311(3) of the RHC Rules reads as under:-

"(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 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 appealled from under sub-section (2A) of Section 426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal."

[2024:RJ-JP:11447] (3 of 5) [CRLR-51/2024]

8. Hon'ble Apex Court in the matter of Vivek Rai & Anr. V. High

Court of Jharkhand through Registrar General: (2015) 12 SCC 86

while interpreting Rule 159 of the Jharkhand 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."

9. Rule 159 of the Jharkhand High Court is almost pari materia

of the Rule 311 of the RHC Rules. Learned appellate court vide

impugned judgment dated 18.12.2021 has affirmed the judgment

and order of conviction passed b the learned trial court vide

impugned judgment dated 02.05.2019.

10. Undoubtedly, the petitioner did not appear before the

learned trial court and also not annexed the certificate of custody

as provided in Rule 311(3) of the RHC Rules.

11. Hon'ble Apex Court in the matter of Vivek Rai (supra) further

expressed as under:-

"It has not been dispute 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

[2024:RJ-JP:11447] (4 of 5) [CRLR-51/2024]

jurisdiction, has to be assumed in the impugned Rule."

12. The law laid down in the matter of Vivek Rai (supra) makes it

clear that inherent power of High Court to exempt the requirement

of surrender in exceptional cases and situations may be acted

upon. It is also clear from the judgment of Vivek Rai (supra) that

grant of such exemption depends upon the nature and

circumstance of each case. Therefore, considering the fact that

parties have arrived at compromise, the defect pointed out by the

Registry regarding non-annexing of certification provided under

Rule 311(3) of RHC Rules is overruled.

13. In the present matter, learned trial court vide impugned

judgment dated 02.05.2019 convicted and sentenced the

petitioner for one years' of simple imprisonment and fine of

Rs.1,20,000/- and in default of payment of fine, he shall undergo

for one month's additional S.I.

14. Considering the law laid down in the matter of Vivek Rai

(supra) and the fact that petitioner has entered into compromise

with the respondent and has paid the entire amount of

Rs.1,20,000/- imposed as fine so also looking to the short sentence

awarded by the learned trial Court, I consider it just and proper to

suspend the sentence awarded to the petitioner.

15. Accordingly, the application for suspension of sentence filed

under Section 397 read with Section 401 Cr.P.C. is allowed and it is

ordered that the sentences passed by learned Additional Chief

Judicial Magistrate No.10, Jaipur Metropolitan in Case No.752/2014

(606/2008) vide judgment dated 02.05.2019 as affirmed by

learned Additional District and Session Judge No.7, Jaipur

Metropolitan, Second in Criminal Appeal No.20/2019 vide

[2024:RJ-JP:11447] (5 of 5) [CRLR-51/2024]

judgment dated 18.12.2021 against the petitioner Pushpendra

Mohan Pathak s/o Shri Jagdish Prasad Pathak, 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 08.04.2024 and whenever ordered to do so, till the

disposal of the revision on the conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the revision is decided.

2. That if the applicant changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.