Madhya Pradesh High Court
Rakesh vs Lakhanlal on 27 February, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 6096/2019
Rakesh
Vs
Lakhanlal and another
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Shri Satyam Agrawal, learned counsel for the petitioner.
Shri Satish Kumar Dubey, learned counsel for the respondent No.1
Shri R.D. singh, learned Panel Lawyer for the respondent No.2/State.
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ORDER
(27.02.2020) Heard on the question of maintainability.
2. On perusal of office note dated 18.12.2019, it shows that the petitioner has not surrendered himself before the trial Court even after dismissal of his appeal. It is also mentioned by the office, the counsel of petitioner has filed an I.A. No. 23142/19 an application for exemption from surrender.
3. Learned counsel for the petitioner submits that petitioner has filed this Criminal Revision under Section 397/401 Cr.P.C. being aggrieved by the judgment dated 10.01.2019 passed by 3 rd Additional Sessions Judge, Sehore in Criminal Appeal No. 239/2016, arising out of order dated 09.08.2016 passed by JMFC Ichawar in Criminal Case No. 233/2014 whereby the JMFC has convicted the petitioner for the offence under Section 138 of N.I. Act and sentenced to undergo R.I. for 6 months with fine amount of Rs. 1,00,000/-. The default stipulation 2 Cr.R. No. 6096/2019 has also been imposed by the Court. In appeal, the learned appellate Court has also affirmed the judgment of trial Court.
4. Now, the petitioner as well as victim/respondent No.1 have settled their dispute and the respondent No. 1 does not have any grievance with the petitioner. They want to close the proceeding by way of compromise. The petitioner had no knowledge about the listing of appeal and decision of the case, hence, he did not appear before the Appellate Court. Apart from that he is a poor driver and in case, if he surrenders himself, his entire family would suffer adversely. Since, no differences remain between both the parties and the petitioner has satisfied the grievance of the respondent No.1, therefore, no purposes would be served to direct the petitioner to surrender himself. Therefore, the application may be allowed and on the basis of compromise, the petition may also be disposed of. In support of his application for compromise, he has filed the affidavit of the complainant. He has also relied on the judgment of Hon'ble Apex Court as well as this High Court, same are mentioned herein under:
i. Vivek Rai and another Vs. High Court of Jharkhand reported in (2015) 12 SCC 86 ii. Ramesh Singh and otheres Vs. The State of M.P. passed in Cr.R. No. 4144/2019 vide order dated 16.09.2019.
iii. Dilip Shivhare Vs. Kamal Kumar Bachhani passed in Cr.R. No. 2483/2018 vide order dated 29.08.2018.
5. On the other hand, learned counsel for the respondent No.1 does not oppose the same.
6. On perusal of case, it appears that the complainant and petitioner are relatives and petitioner was borrowed Rs. 90,000/- from the complainant for some personal needs with commitment to return the said money within 10 days. On 23.06.2014, petitioner gave a 3 Cr.R. No. 6096/2019 cheque of Rs. 90,000/- bearing No. 485723 to the complainant. On presentation the said cheque before the bank, same was dishonored with the endorsement "insufficient balance". The respondent No.1 has filed the complaint of Section 138 of N.I. Act. The petitioner has lost his case before the trial Court as well as Appellate Court, hence, he has preferred this criminal revision.
7. As per rule 48 of chapter 10 of M.P. High Court Rules, 2000, a criminal revision having been filed by the applicant/accused is not maintainable as neither his jail sentence awarded by the Appellate Court was suspended by the Court nor he has surrendered before the trial Court. The Coordinate Bench of this Court in the case of Deepak Sahu and others Vs. State of M.P. reported in 2012(3) MPHT 82 makes a declaration to the effect that the convicted person is in custody or has surrendered after the conviction mandatory.
8. Subsequently, in the case of Vivek Rai (supra), to the context of Rule 159 of the High Court of Jharkhand which restrict admissibility of criminal revision unless the petitioner has surrendered, the Hon'ble Apex Court has hold that the rule does not suffers from any infirmity but same also does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situation. On perusal of Rule 159 of the High Court of Jharkhand rules 2001, the rule 48 of chapter 10 of MP High Court is found pari materia of rule 159 of High Court of Jharkhand rules 2001. The learned counsel for the petitioner has also relied on the orders of Coordinate Benchs wherein the Court has considered the pronouncement of the Hon'ble Apex Court and considering the exceptional circumstances of the case, exempted the accused for surrendering before the Court. 4 Cr.R. No. 6096/2019
9. Herein, It appears that there is delay of 236 days in filing this Criminal Revision although the petitioner has filed the application for condoning the same by giving the reason that the petitioner was on his job when hearing of appeal was going on and he was also not in contact of his counsel due to which he was not aware about the final judgment of Appellate Court. But on perusal of record, it shows that on 15.09.2016 the jail sentence of the petitioner was suspended by the Appellate Court with the direction to deposit Rs. 25,000/- inter alia but the petitioner has not complied with the direction, hence, the Appellate Court has issued arrest warrant against the petitioner vide order dated 02.05.2017. On 20.11.2018, the learned counsel for the petitioner appeared on his behalf before the Appellate Court and filed an application under Section 317 of Cr.P.C. since after, the petitioner was being represented through his counsel. On 10.01.2019 when the judgment was pronounced by the Appellate Court, his counsel has again filed an application under Section 317 of Cr.P.C. for condoning his absence. Therefore, the ground of the petitioner regarding no knowledge about the proceeding of Appellate Court is not reliable. It is made clear that, the application for condonation of delay in filing this petition is not being considered today since the question of maintainability is being decided first. The only thing appears to be considerable in the case is that the parties have entered into compromise and the complainant has also given an affidavit in this regard, but looking to the conduct of the petitioner, in my opinion, this reason can not be explained as exceptional circumstances for relaxing him from surrender before the trial Court.
5Cr.R. No. 6096/2019
10. Accordingly the I.A. No. 23142/19 is hereby rejected. Petitioner is directed to surrender himself before the trial Court within a period of 15 days from today.
11. List the case in the week commencing 16.03.2020.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.02.28 17:13:23 +05'30'