Madhya Pradesh High Court
Balkrishna Namdeo vs The State Of Madhya Pradesh on 3 April, 2017
CRR-2662-2015
(BALKRISHNA NAMDEO Vs THE STATE OF MADHYA PRADESH)
03-04-2017
Shri T.P. Jaiswal, learned counsel for the applicant.
Shri Pramod Chourasiya, learned Panel Lawyer for respondent
No.1/State.
Shri Vinod Kumar Dubey, learned counsel for respondent No.2/complainant.
Heard on I.A. No.1520/2017, whereby respondent No.2 has challenged the maintainability of this revision filed by the applicant under Section 397 r/w 401 of the Cr.P.C.
Learned counsel for respondent No.2 submits that vide the judgment dated 04.09.2014 passed by the Judicial Magistrate First Class (Smt. Kanchan Saxena) Bhopal in Criminal Case/RCT No.3331/2013 titled Pradeep Dwivedi Vs. Balkrishna Namdeo, the applicant stood convicted under Section 138 of the Negotiable Instruments Act and sentenced thereunder to suffer S.I. for one year and to pay a compensation, under Section 357(3) of the Cr.P.C., of Rs.7,85,000/- (seven lakh eighty five thousand) to the complainant, who is respondent No.2 herein. In default of the payment of compensation by the applicant, he has to further suffer S.I. for a month. Feeling aggrieved by the judgment of the trial court, the applicant filed Criminal Appeal No.928/2014 titled Balkrishna Namdeo Vs. Pradeep Dwivedi. This appeal was adjudicated by the Sixteenth Additional Sessions Judge (Shri B.S. Bhadouriya) Bhopal vide the impugned judgment dated 01.10.2015, whereby the learned Appellate Judge affirmed the judgment of conviction and order of the sentence passed by the trial court in toto, rejecting his appeal. Feeling dissatisfied with the impugned judgment of the appellate court, the applicant has approached this Court by filing this criminal revision. After referring to the proceedings dated 01.10.2015 recorded by the appellate court on the date of pronouncement of the impugned judgment, he submits that the applicant was not present on that day, whereupon the learned Appellate Judge has directed the trial court to take steps to secure the presence of the applicant in the case, send him to jail for undergoing the jail sentence and to recover the compensation amount from him. After referring to the memo of revision, he submits that there is no declaration in the memo to the effect that the appellant is in custody or he has surrendered after the pronouncement of the impugned judgment, whereas such a declaration is mandatory as per the provisions of Rule 48 of Chapter 10 of the M.P. High Court Rules 2008. He submits that the applicant has filed this revision on 20.10.2015. No evidence has been furnished till today on behalf of the applicant that during the pendency of this revision he has surrendered before the trial court to undergo the jail sentence imposed upon him in the case. Thus, this revision is not maintainable in view of the provisions of the said Rule. Consequently, he prays for dismissal of the revision on the ground of non-maintainability.
In reply, learned counsel for the applicant concedes that the aforestated declaration is not made in the memo of revision and that the applicant has not so far surrendered before the trial court in the case to undergo the jail sentence.
Upon the perusal of the memo of revision, I find that no aforestated declaration is made in the memo of revision. There is no evidence on the record that the applicant has surrendered during the pendency of this revision before the trial court to undergo the jail sentence in the case. While interpreting Rule 48 of Chapter 10 of the M.P. High Court Rules 2008, this Court has held in the case of Deepak Sahu and others Vs. State of M.P. [2012 (3) MPLJ 534] that if the appellate court has convicted and sentenced an accused rejecting his appeal and he has filed the revision challenging the judgment of appellate court, then in the memo of revision it is mandatory of making a declaration on his behalf to the effect since when he is in custody or when he has surrendered before the court concerned to undergo the jail sentence after the pronouncement of judgment of conviction and sentence by the appellate court.
For the aforestated reasons and discussion, I hold that this revision is not maintainable. Therefore, this revision is dismissed. Notwithstanding that, taking into consideration a long term of the jail sentence, a large quantum of compensation and in the interest of justice, I grant a liberty to the applicant that he may file an application for restoration of this revision upon his proving that he has surrendered before the trial court to undergo the jail sentence.
The trial court or its successor court, as the case may be, is directed to take all necessary steps to secure the presence of the applicant in the case, send him jail to suffer the jail sentence and realize the amount of compensation. The trial court is also directed to proceed against the surety of the applicant in terms of Section 446 Cr.P.C. and submit a report to this Court after three months from the date of receipt of a copy of this order and records of the courts below as to what steps have been taken by it to comply with the directions passed by this Court in this order.
The Registry is directed to send the records of both the courts below with a copy of this order in a fortnight.
Accordingly, this criminal revision petition is disposed of. Certified copy as per rules.
(RAJENDRA MAHAJAN) JUDGE sp/-