Madhya Pradesh High Court
Ajay Kumar vs Poonamchand on 8 May, 2018
THE HIGH COURT OF MADHYA PRADESH
Cr.R. No.1863/2018
(Ajay Kumar Vs. Poonamchand)
Indore dated : 08/05/2018
Shri Sunil Verma, learned counsel for the applicant.
Service report of notice issued against the respondent is
awaited.
The applicant has been convicted by the Judicial Magistrate
First Class, Mandsaur for the offence under Section 138 of the
Negotiable Instruments Act and he was sentenced to undergo 6
months R.I. and to pay compensation of Rs.2,38,204/- under Section
357(3) of the Cr.P.C. Being aggrieved with the aforesaid judgment of
conviction the applicant has preferred appeal before the Sessions
Court, Mandsaur, in which the Additional Sessions Judge, Mandsaur
affirmed the conviction passed by the Judicial Magistrate First Class,
however, sentence has been reduced from 6 months R.I. to 1 months
R.I. Being aggrieved with the aforesaid applicant has preferred this
revision petition under Section 397/401 of the Cr.P.C.
Heard learned counsel for the applicant on IA No.2827/2018,
an application under Section 397(1) of the Cr.P.C. for suspension of
sentence and for grant of bail to applicant-Ajay Kumar.
Learned counsel for the applicant has submitted that the
complainant has failed to prove that the cheque was issued by the
applicant in furtherance to any liability and inspite of that the courts
below have convicted the applicant. Under these circumstnaces he
prays for suspension of jail sentence and for grant of bail to the
applicant-Ajay Kumar.
I have heard learned counsel for the applicant and perused the
record.
The question arises for consideration before this Court is whether
this revision is tenable despite the fact that the applicant has not
surrendered before the Appellate Court at the time of judgment. In
other words if the convicted is not in custody whether revision would
be tenable.
It is true that there is no requirement under the Cr.P.C. which
makes it necessary for the accused to surrender after conviction before
filing Criminal Revision, however, as per Chapter X of Rules 48 of the
M.P. High Court Rules, 2008 makes it is obligatory to the applicants to
surrender and only then revision would be tenable. According to Rules
48, a declaration is obligatory for the accused to the effect that he is in
custody or has surrendered after the conviction except that whether the
sentence suspended by the Courts below. In the case of Dilip Sahu
Vs. State of M.P. 2012 (3) MPLJ 354 this Court while dealing with
the maintainability of the revision has held that Criminal Revision
against conviction is tenable only when applicant has given
declaration to the effect that the appliant is in custody or has
surrendered after the conviction.
In view whereof in the considered opinion of this Court this IA
No.2827/2018 and criminal revision are dismissed as not maintainable
.
(S.K. Awasthi) Judge skt Digitally signed by Santosh Kumar Tiwari Date: 2018.05.11 19:30:52 +05'30'