Madhya Pradesh High Court
Mahaveer Prasad Gupta vs Rakesh Agarwal on 11 August, 2017
1 CRR No. 428/2017
11.08.2017
Shri Rinkesh Goyal, Advocate for the applicant.
Shri S.S.Rajput, Advocate for the respondent.
The revisionist/applicant has been convicted under Section 138 of Negotiable Instruments Act, 1881 and his conviction and sentence has been affirmed by the appellate court vide judgment dated 28.4.2017 in Cr.A.No. 115/16. The applicant was sentenced to R.I. for six months besides order of compensation of Rs.1.00 lac with default stipulation.
Learned counsel for the parties jointly submitted an application (IA No.4099/2017) for recording acquittal of the applicant on the basis of compromise arrived at between the parties. Learned counsel for the applicant has also filed IA No.4100/2017, which is an application for exemption of the applicant from surrender before the Court below, as he was not present before the appellate Court at the time of passing of judgment of conviction.
Thus, from the averments of the application itself, it is clear that despite confirmation of his conviction and sentence by the appellate court, the applicant has not surrendered to custody and instead filed the present revision petition without incorporating a declaration to the effect that he is in custody or whether his sentence was suspended by the court below or not at the time of his conviction. But the fact remains that the present revision is filed by the applicant without his surrender before the court below.
In the case of Deepak Sahu and others vs. State of MP, reported in 2012 (3) MPLJ 534, this Court while hearing on the maintainability of the revision 2 CRR No. 428/2017 petition, has held that a criminal revision 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.
In view of the aforesaid decision of this Court on the point of maintainability, present revision petition is not maintainable and is hereby dismissed. Consequently, IA No. 4099/2017 and IA No.4100/2017 are also dismissed.
(S.K. Awasthi) Judge (Yog)