Kumar Sanjay Srivastava @ Sanjay Kumar Srivastava vs State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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CRIMINAL REVISION No. - 237 of 2026

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Kumar Sanjay Srivastava @ Sanjay Kumar Srivastava

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.....Revisionist(s)

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Versus

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State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And Another

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.....Opposite Party(s)

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Counsel for Revisionist(s) : Prashant Kumar, Ankit Srivastava, Hari Anuj Bahadur Sinha, Satish Gulati Counsel for Opposite Party(s) : G.A., Jai Prakash Shukla

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Court No. - 27

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HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

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Vakalatnama filed by Shri Jai Prakash Shukla on behalf of opposite party no.2 is taken on record.

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Heard submissions of learned counsel for the revisionist, Shri Jai Prakash Shukla, learned counsel for the complainant/ opposite party no.2 and Shri Abhai Kumar Singh, learned A.G.A. appearing for the State on the prayer for suspension of sentence/ bail on behalf of the revisionist.

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Instant criminal revision under Section 438 and 442 of BNSS has been preferred against the impugned judgment and order dated 10.02.2026 passed by learned Additional District & Sessions Judge, Court No.16, Lucknow in Criminal Appeal No.76 of 2023, whereby appeal filed by the revisionist was dismissed and the conviction and sentence recorded against him were affirmed, arising out of judgment and order dated 17.03.2023 passed by learned trial court (Presiding Officer, Additional Court No.4, Lucknow), in Complaint Case No.4097 of 2016, under Section 138 of Negotiable Instruments Act, Police Station Vibhuti Khand, District Lucknow.

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Learned counsel for the revisionist submitted that this is an admitted fact that the revisionist has not surrendered before the trial court after dismissal of his appeal by appellate court. The appellant has been granted

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time by the appellate court to surrender on or before 16.03.2026. Before the expiry of the said period, he has filed the present revision against the concurrent judgments of both the courts below on 18.02.2026. The revisionist has been convicted and sentenced by the learned trial court for a charge under Section 138 NI Act and sentenced to one year imprisonment and Rs.23,00,000/- fine. According to the prosecution case, the revisionist had issued a cheque for Rs.11,50,061/- in favour of the complainant, which got dishonored. According to the prosecution version, after dishonor of the said cheque, the complainant issued a demand notice to the revisionist and after non-payment of the cheque amount during statutory period, he filed a complaint under Section 138 NI Act.

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He next submitted that the learned courts below have failed to appreciate this issue that the complainant could not prove the fact that said cheque was issued in discharge of a legally enforceable debt or liability. He further submitted that after the dismissal of the appeal against the judgment and conviction of the sentence passed by the learned trial court, it is not mandatory in each and every case for the accused-convict to surrender before the trial court and only thereafter a revision will be maintainable against the judgments of the trial court and appellate court.

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He next submitted that an affidavit has been filed in compliance of the Order XVIII Rule 3(4) of the Allahabad High Court Rules, 1952 along with supplementary affidavit, which is taken on record, wherein the necessary facts as required in said rule have been mentioned.

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He placed reliance on a judgment of this Court in Criminal Revision No.1012 of 2024 passed by a Co-ordinate Bench, in which this Court, in a revision preferred against the conviction and sentence awarded by the trial court and affirmed by the appellate court, stayed the execution of the sentence and directed the revisionist to be released on bail, subject to prescribed conditions. It was a case of Section 143, 341 IPC and in that case also, the accused-convict was not in confinement in jail after dismissal of the appeal by the court of session. He next submitted that the similar order was passed by a Single Bench of this Court on 22.08.2024 in Criminal Revision No.956 of 2024.

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He placed reliance on a judgment of the Hon'ble Supreme Court in a case under Section 138 of the NI Act, Criminal Appeal No.1497 of 2022, Dashrathbhai Trikambhai Patel versus Hitesh Mahendrabhai Patel and another , wherein it is observed in paragraphs 16 and 25 as under:-

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"16. The judgments of this Court on post-dated cheques when read with the purpose of Section 138 indicate that an offence under the provision arises if the cheque represents a legally enforceable debt on the date of maturity. The offence under Section 138 is tipped by the dishonour of the cheque when it is sought to be encashed. Though a post-dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstance such that the sum in the cheque does not represent a legally enforceable debt at the time of maturity or encashment, then the offence under Section 138 is not made out.

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25. Section 138 creates a deeming offence. The provisos prescribe stipulations to safeguard the drawer of the cheque by providing them the opportunity of responding to the notice and an opportunity to repay the cheque amount. The conditions stipulated in the provisos need to be fulfilled in addition to the ingredients in the main provision of Section 138. It has already been concluded above that the offence under Section 138 arises only when a cheque that represents a part or whole of the legally enforceable debt at the time of encashment is returned by the bank unpaid. Since the cheque did not represent the legally enforceable debt at the time of encashment, the offence under Section 138 is not made out"

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He lastly submitted that it is up to discretion of this Court to exempt the revisionist from surrendering to trial court, in exercise of inherent powers under Section 151.

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Per contra, learned A.G.A. and learned counsel appearing for the complainant vehemently opposed the prayer for execution of sentence on the ground that the revision itself is not maintainable before the surrender of the revisionist before the trial court after dismissal of his appeal by the appellate court. Learned counsel for the first informant placed reliance on a judgment of this Court in Praveen Kumar Agarwal vs. State of U.P.

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and others, (2025) 1 High Court Cases (All) 20 , wherein it is observed in paragraphs 12, 32, 33 and 34 as under:-

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"12. Sri Sushil Kumar Shukla, learned counsel appearing for Opposite Party No. 2 has relied on the judgment rendered by the Hon'ble Supreme Court in the case of Vivek Rai and Another Vs. High Court of Jharkhand through Registrar General and another, (2015) 12 SCC 86 and the judgment dated 28.5.2024 rendered by the High Court of Madhya Pradesh at Indore in Criminal Revision No.1912 of 2024, Devnarayan Vs. Prateek Goenka. It has been argued on behalf of Opposite Party No.2 that the law laid down in the aforesaid judgments makes it mandatory that the revisionist should first surrender before the court concerned and only thereafter his revision can be entertained and heard by the High Court.

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32. Now, this Court proceeds to consider the purport of Rule 2 and Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952 in the matter of criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C., in the light of the aforesaid judgments rendered by the Hon'ble Supreme Court and the High Court of Madhya Pradesh at Indore. It is apparent that Sections 235, 248 and 353 Cr.P.C. categorically provide that on conviction of an accused, he has to surrender before the court concerned and in his presence, the court would take decision in respect of the sentence. If the provisions made in the different sections of the Code of Criminal Procedure are considered together, it is patently manifest that after conviction, it is obligatory on the convict to surrender before the trial court and if he has not surrendered, it is duty of the court concerned to ensure the surrender of the convict before it.

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33. The Allahabad High Court had framed rules known as Allahabad High Court Rules, 1952. Rule 2 read with Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952 categorically provide that a convict should file a certificate along with the criminal revision certifying that, either he was not on bail or if he was on bail, he had surrendered before it and once the said certificate is not accompanied with the revision, it would not be in order and would be liable to be rejected by the High Court. It is noteworthy that the rule making authority in Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952 had intentionally used the words "shall also contain a certificate" thereby to make the requirements under the rule mandatory for the revisionist meaning thereby that unless the convict, while filing criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C. gives a certificate that he

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had surrendered, the criminal revision would not be in order and would not be entertained by the High Court. However, if Rule 2 is read with Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952, that leaves the scope for filing an application seeking exemption from surrender by the revisionist on the basis of some extraordinary circumstances and if the said exemption is prayed for, the High Court can take into consideration the said application seeking exemption and can pass necessary order.

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34. Now coming to the facts of the case in hand, it is apparent from the record that the revisionist after his conviction by the trial court has not surrendered and even during pendency of his appeal before the appellate court, he did not surrender. The revisionist, while filing the instant criminal revision under Section 397 Cr.P.C. read with Section 401 Cr.P.C., has not annexed the certificate as required under Rule 3(4) of Chapter XVIII of Part III of the Rules of 1952 that he has surrendered therefore, the instant criminal revision is not in order and as such, in view of the provisions made in Rule 2 of Chapter XVIII of Part III of the Rules of 1952, the instant criminal revision cannot be entertained and is liable to be rejected."

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11.In the present case Rule 3 (4) under Chapter XVIII of the Allahabad High Court Rules, 1952 provides that in a case in which a sentence of imprisonment has been awarded, the petition of appeal or the application for revision shall also contain a certificate signed by the advocate for the appellant or the applicant, as the case may be, stating that the accused was not on bail or that, if he was on bail, he has surrendered to it. In a case in which bail has been granted by the Court appealed from order sub-section (3) of Section 389 of the Code of Criminal Procedure, 1973, the fact shall be stated in the petition of the appeal indicating the period of which such bail has been granted.

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Although in the above Rules it is not stated in so many words that without surrendering the appellant to the judgment against which revision has been preferred, the appeal or revision shall not lie or will not be maintainable, yet an inference may be drawn that it is essential under the rule to firstly, surrender before the trial court after judgment of conviction and sentence has been affirmed by lower appellate court.

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On the facts of present case some leverage may be given to the

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revisionist for his exemption for surrender as he was directed by appellate court to surrender before the trial court upto 16.03.2026 and before expiry of said stipulated period he has filed the present revision on 11.03.2026.

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Recently, Bombay High Court in the case of Ikba and another Vs. State of Maharashtra and others in Criminal Revision Application No.301 of 2022 decided on 08.06.2024 , the Division Bench has held that though the High Court would not be justified in refusing to entertain the revision in the absence of the Rules for regulating listing of the revisions without surrender, it has powers to simultaneously ensure compliance with the provisions of Sections 353(5), 353(6) and Section 418 of the Code of Criminal Procedure under its inherent powers contained in Section 482 and in exercise of its supervisory jurisdiction under Section 397 read with Section 401 of Cr. P.C., and may suspend the sentence without the surrender or arrest of the accused, in its discretion.

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In view of the above , this Court keeping in view of nature of the offence which is triable summarily and punishable with maximum term of two years imprisonment and fine and totality of facts and circumstances of the case grants exemption to the revisionist from surrendering in exercise of its inherent powers..

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Admit.

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List the revision in due course.

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Order on Crl. Misc. Application No.01 of 2026 for interim relief

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Learned counsel for the revisionist has filed the application for interim relief wherein a prayer has been made to stay the operation, implementation and effect of the impugned judgement and order dated 10.02.2026 passed by learned court below and further prayer has been made therein that to pass any other order or direction which this Court may deem fit , just and proper in the fact and circumstance of the case.

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Learned counsel for the revisionist in the application for interim relief prays for suspension of sentence and grant of bail to the revisionist under Section 389(1) Cr.P.C. during pendency of revision.

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Learned counsel for the revisionist further submits that the complainant has stated in the complaint that he has given Rs.30,00,000/to the opposite party/ accused in connection with professional relations but get mode and manner of payment has not been mentioned. The revisionist has tendered evidence in this regard that said cheque was issued to the complainant as security and it was blank cheque and the said amount was filled up at the instance of complainant. The revisionist had already paid Rs.2,28,000/- to the complainant which has not been deducted from the claimed amount by the complainant.

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Per contra, learned A.G.A. submits that no amount was given by the accused in pursuance of demand notice which compelled the complainant to file complaint under Section 138 N.I. Act before the court below. The revisionist has deposited Rs.4,60,000/- before the trial court in pursuance of the direction of learned lower appellate court but instead a substantial amount out of Rs. 23,00,000/- fine imposed is outstanding and has not been deposited.

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Considering the rival submissions made by learned counsel for the parties and the fact and circumstances of the case and also taking into consideration the nature of offence which has arisen out of business transaction between the parties and without expressing any view on the merits of the case, I find that the implementation of sentence be suspended. The revisionist be enlarged on bail during pendency of the revision subject to conditions.

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. Let the appellant, namely, Kumar Sanjay Srivastava @ Sanjay Kumar Srivastava, be released on bail in the aforesaid Sessions Trial number during the pendency of revision on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned provided with the condition that the revisionist shall deposit 30% of the total amount of fine before the trial court within a month. The bail bond shall be submitted before the trial court within ten days and the implementation of sentence of one year imprisonment and Rs.23,00,000/- fine shall remain suspended.

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On acceptance of bail bonds and personal bonds, the lower court shall

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transmit photostat copies thereof to this Court for being kept on record.

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The revisionist has undertaken not to indulge into any anti-social activity particularly against the informant and in the event of any such incident it shall be open to the complainant to make an application for cancellation of bail.

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The remaining amount of fine shall remain stayed during pendency of this revision.

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(Ram Manohar Narayan Mishra,J.)

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March 16, 2026 dk/

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Digitally signed by :- DEVENDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Kumar Sanjay Srivastava @ Sanjay Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another

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Kumar Sanjay Srivastava @ Sanjay Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another

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