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Madhya Pradesh High Court

Vijay Lala vs Ghanshyam on 28 June, 2023

Author: Prem Narayan Singh

Bench: Prem Narayan Singh

                                                     1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                             AT INDORE
                                              CRR No. 2673 of 2023
                                               (VIJAY LALA Vs GHANSHYAM)

               Dated : 28-06-2023
                          Shri Surendra Kumar Gupta, learned counsel for the petitioner.


                          Heard on the question of admission.
                          2. Admit.
                          3. Heard on I.A.No.9143/2023, which is an application for suspension
               of jail sentence of the petitioner who has been convicted 1st Addl. Sessions

               Judge, Indore in CRA.No.304/2022 vide judgment dated 29.3.2023, conforming
               the order of JMFC dated 23.9.2022 in SC NIA/3133152/2016, for commission
               of offence punishable under Section 138 of Negotiable Instrument Act and
               sentenced to undergo 1 year RI with compensation of Rs.7,00,000/- and
               interest @ of 9% from 25.7.2016. In case of default of payment of
               compensation, 1 month's additional S.I.
                          4 . Short facts of the case are that there was an execution of agreement
               regarding building which was under construction and it was agreed between the
               petitioner and non-applicant that after completion of construction within 9

               months, applicant shall execute the registration of agreed flats in the name of
               non-applicant and Sunita Tahilyani. It was also agreed that if the construction is
               not completed in 9 months, then non-applicant and Sunita Tahilyani shall be
               entitled to get their money with an interest @ of 21% per annum. As the
               construction was progressed and respondent apprehended that the work will

not be completed on time therefore, appellant issued a cheque of Rs.5,50,000/-

dated 13.11.2014 and payment of rest amount of Rs.7,00,000/- was remained.

As the petitioner did not pay the balance amount and tried to sell the flats to 2 some other persons therefore, non-applicant made a complaint against the petitioner on 9.6.2018 with police Juni Indore, in which statement of petitioner was recorded wherein he admitted the payment of balance amount.

5. Learned counsel for the petitioner submits that since the petitioner is suffering from illness therefore, it can be treated as an exception case, petitioner be exempted from surrendering before the trial court and his application for suspension of sentence be allowed. He placed reliance upon the order dated 23.7.2019 passed by the coordinate Bench of this court in the case of Smt. Lata vs. Manjul wherein the contention has been raised by the learned counsel for the petitioner placing reliance upon the judgment of the Apex court in the case of Vivek Rai & Anr. vs. High Court of Jharkhand , (2015) 12 SCC 86, in light of the aforesaid judgment it was submitted 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 along with revision memo while interpretating the said Rule.

6. 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.

7. In light of the aforesaid, it is prayed that petitioner may be exempted from surrendering before the trial court as he is suffering from disease of which the related documents are available on record and, therefore, looking to his health and condition his case be treated as an exceptional case and he be Signature Notexempted Verified from surrendering before the trial court and application for Signed by: SHAILESH suspension of jail sentence of the petitioner be allowed. MAHADEV SUKHDEVE Signing time: 6/28/2023 6:04:06 PM 3

8. He further relied on the order passed by the High Court of Judicature at Bombay, Bench Aurangabad passed in Criminal Case No.42/2019 in the matter of Ramesh Murlidhar Sharma vs. State of Maharashtra & Anr.

9. Chapter X of Section 48 of the 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 the Cr.P.C."

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."

1 0 . As per the rules which are framed by Jharkhand High Court Rule 159, are also requires surrender of the accused before the court below.

11. 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 Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE that even in Supreme Court Rules prohibition against listing Signing time: 6/28/2023 6:04:06 PM 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 to exempt the requirement of surrender in exception 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."

12. 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.

13. The present case is related to the offence under Section 138 of the Negotiable Instrument Act and the petitioner is suffering from disease, document of which are available on record hence it can be treated as an exceptional case, therefore, treating the case of the petitioner as exceptional, petitioner is exempted from surrendering before the trial court.

any opinion on merits of the case, the application (I.A.No.9143/2023) for MAHADEV SUKHDEVE Signing time: 6/28/2023 6:04:06 PM 5 suspension of jail sentence is allowed subject to depositing Rs.7,00,000/- (Rs. Seven Lakhs only) cash by the petitioner before the trial court within a period of one month, it is directed that on furnishing personal bond of Rs.50,000/- with one solvent surety in the like amount to the satisfaction of the trial court for his appearance before the Registry of this Court on 3.8.2023 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 petitioner shall remain suspended, till the final disposal of this revision, subject to complying the condition mentioned above.

15. It is made clear that in case, petitioner fails to deposit the sum of Rs.7,00,000/-(Rs. Seven Lakhs only) as aforesaid, then the jail sentence suspended by this Court shall automatically stand cancelled without further reference to this Court and the concerned police station shall be at liberty to take action against the petitioner in accordance with law.

1 6 . A copy of this order be sent to the Court concerned for it's compliance.

17. Let record of the courts below be requisitioned. 1 8 . Notice be issued to the respondent on payment of P.F. within a period of one week, returnable within 4 weeks.

19. List the matter after four weeks alongwith service report and record.

(PREM NARAYAN SINGH) JUDGE SS/-