Rajasthan High Court - Jaipur
Ramesh Kumar Sharma vs Subhash Chand Gupta on 6 September, 2011
SB Criminal Revision Petition No.1096/2011 Ramesh Kumar Sharma Vs. Subhash Chand Gupta Date of order 6.9.2011 HON'BLE DR. MEENA V. GOMBER, J.
Mr. Vijay Kumar Sharma, for accused petitioner None present for non petitioner Heard.
The accused petitioner filed this revision petition under Sections 397 read with 401 CrPC against the order dated 5.6.2010 passed by First Appellate Court whereby his appeal No.18/2010 had been dismissed and the order of conviction and sentence for offence under Section 138 of the Negotiable Instruments Act, 1881 passed by Judicial Magistrate No.3, Jaipur City, in Criminal Complaint No.146/2007, had been upheld.
As per the record, the accused did not surrender before the Appellate Court at the time of pronouncement of judgment. Even in the certificate filed under Rule 311(3) of the Rules of Rajasthan High Court, the fact with regard to non surrender of the accused is reflected.
Brief facts necessary for the purpose of this revision are, that non petitioner had filed a complaint to the effect that in consideration of the amounts borrowed by the accused petitioner, from time to time, he issued a cheque for Rs.80,000/- bearing no.180280 of UCO Bank, Johri Bazar, Jaipur, in his favour on 31.12.2002. The cheque was presented in State Bank of Bikaner & Jaipur, Chanpole Bazar, by the complainant, which was returned on 15.5.2003 on account of insufficient funds. Thereafter, non petitioner, after adopting the procedure prescribed under the Negotiable Instruments Act, filed aforesaid criminal complaint and the Court took cognizance against the petitioner.
In order to substantiate his complaint, the non petitioner examined himself as PW.1, proved the documentary evidence and after completion of complainant's evidence, petitioner was examined under Section 313 CrPC, who denied having written or given any cheque to the complainant, however, he did not lead any defence.
Learned Trial Court, after hearing the parties and on the basis of material before it, passed the order impugned on 17.2.2007, and convicted the petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced him to 6 months' simple imprisonment and a fine of Rs.5000/-, in default whereof to further undergo 1 month simple imprisonment. As against this, the petitioner filed appeal, which was dismissed by the Additional Sessions Judge No.8, Jaipur City on 5.6.2010.
Proceeding further on merits, it is just and proper to deal with the maintainability of this petition. It is clear from record that the petitioner did not surrender before the Appellate Court and in his absence the Appellate Court passed the order impugned. As per Section 389(3) CrPC the Trial Court convicted the accused, has been given power to suspend the sentence for one month. Section 389 CrPC is reproduced as under:-
389. Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a court subordinate thereto.
(3) Where the convicted person satisfies the court by which he is convicted that he intends to present an appeal, the court shall, -
(i) Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) Where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of 'imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
According to Section 389(3) CrPC, at the time of pronouncement of judgment by the trial court, the accused may apply for suspension of sentence, showing his intention to appeal before the appellate court. The trial court may suspend the sentence for a period of one month for filing the appeal.
However, as per Section 374 CrPC, the appellate court may exercise the power under Section 389 CrPC to suspend the sentence during the pendency of appeal. After passing of the judgment in appeal, for filing revision petition before the High Court under Section 397 read with Section 401 CrPC, the appellate court is not given discretion to exercise the power as provided under Section 389 (3) CrPC, therefore, the appellate court has no option except to take the accused in custody and send him to jail to serve the sentence. Admittedly, in the present case, the accused was not present before the Appellate Court at the time of pronouncement of judgment and he did not surrender as per requirement of law, therefore, in absence of his surrender the present revision petition is not maintainable.
As per R.311 of the High Court Rules also, the petitioner, while filing revision has to file a certificate of his being into custody, which in the case in hand, had not been filed.
In these circumstances, the revision petition is not maintainable on this ground itself. Hence deserves to be dismissed and is hereby dismissed. The stay application also stands disposed.
(Dr. Meena V. Gomber) J.
db [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya P