Madhya Pradesh High Court
Somash Pathak vs Prenarayan Batham on 12 February, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
THE HIGH COURT OF MADHYA PRADESH
Cr. Revision No.5053/2019
(Somash Pathak Vs. Premnarayan Batham)
(1)
Gwalior, dated : 12/02/2020
Shri Sohit Mishra , Advocate for the applicant.
Shri Kumar Gaurav Sharma, Advocate for the respondent.
Heard on admission.
This revision petition is directed against the appellate judgment dated 26.08.2019 passed by XIVth Additional Sessions Judge, Gwalior in Cr. Appeal No.14/2019, whereby conviction of the applicant for the offence punishable under Sections 138 of the Negotiable Instruments Act, as recorded by Judicial Magistrate First Class, Gwalior, vide judgment dated 13/12/2018 passed in Cr. Case No.344/17, and consequential sentence of due admonition with direction to pay compensation to the complainant to the tune of Rs.1,88,613/- in default to suffer S.I. for 5 months, were affirmed.
A bare perusal of I.A. No.8182/19, which is an application for suspension of sentence reveals that the applicant is not in Jail. In this regard, Rule 48 (Chapter X) of the M.P. High Court Rules reads 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 declaration to the effect that the convicted person is in custody or has surrendered after conviction"
(Emphasis supplied) From the above, it is evident that such a declaration that the convicted person is in custody or has surrendered after conviction is mandatory in the memorandum of appeal or revision. While addressing THE HIGH COURT OF MADHYA PRADESH Cr. Revision No.5053/2019 (Somash Pathak Vs. Premnarayan Batham) (2) similar controversy, a co-ordinate Bench of this Court in Deepak Sahu Vs State of M.P. (2012 (3) MPLJ 534) has held that a revision petition against conviction is tenable only when it contains a declaration to the effect that the convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the Court below.
Admittedly, in this revision petition, the petitioner has not surrendered before the trial Court for undergoing the default sentence as the amount of compensation has yet not been paid by him. The memorandum of the petition also does not contain any declaration in terms of Rule 48 (Supra).
In view of the aforesaid, this revision petition is not maintainable and is, accordingly, dismissed.
(S.A.Dharmadhikari) JUDGE (and) ANAND SHRIVASTAV A 2020.02.14 14:15:47 +05'30'