Allowed

Pushpendra Mohan Pathak Son of Shri Jagdish Prasad Pathak v. Rambabu Gupta Son of Late Shri Nanagram

Rajasthan HC5 Mar 2024SOSR/26/2024

Case brief

AI extract

What is this about?

A convicted cheque-dishonour offender sought suspension of sentence in revision without a surrender certificate, having compromised with and paid the complainant. Invoking inherent power recognised in Vivek Rai, the court overruled the Registry defect and suspended the sentence on bail conditions.

What did the court decide?

Sentence suspended till final disposal of revision; petitioner released on bail on personal bond of Rs.50,000/- with two sureties of Rs.25,000/- each.

Pushpendra Mohan Pathak Son of Shri Jagdish Prasad Pathak… — Cheque Dishonour | Rajasthan HC (2024)

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[2024:RJ-JP:11447]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc. (Suspension of Sentence) Application

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No.26/2024

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S.B. Criminal Revision Petition No. 51/2024

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Pushpendra Mohan Pathak Son Of Shri Jagdish Prasad Pathak, Aged About 55 Years, Resident Of 12B-39, Ganesh Path, Ramnagr, Sodala, Jaipur (Raj)

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----Petitioner

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Versus

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Rambabu Gupta Son Of Late Shri Nanagram, Resident Of Plot No. 136, Gandhi Vihar Colony, Airport Road, Sanganer, Jaipur (Raj)

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----Respondent

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For Petitioner(s)	: Mr. Deendayal Khandelwal
For Respondent(s)	: Mr. DevendraJain

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HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

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Order

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05/03/2024

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The matter comes upon an application for overruling the defect pointed out by the Registry. Registry has pointed out the following defects:-

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“ (i) Certificate under Rule 311(3) is not according to Rule 2. (iii) It is time barred by 658 days and an application under Section 5 of Limitation Act has been filed”

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Learned counsel for the petitioner submits that compromise (Annexure -3) have been arrived at between the parties and as per the said compromise, petitioner has paid the entire cheque amount to the respondent Rambabu Gupta son of Late Shri Nanagram.

[2024:RJ-JP:11447]

[CRLR-51/2024]

(2 of 5)

He further submits that in view of the fact that parties have entered into compromise. The defect pointed out by the Registry for not annexing the certificate under Section 313(3) of the Rajasthan High Court Rules for condoning the delay of 658 days may be overruled and application for suspending the sentence of the petitioner may be allowed.

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Learned counsel appearing on behalf of Rambabu Gupta son of Late Shri Nanagram accepts that parties have arrived at compromise and respondent has no objection, if the sentence of petitioner is suspended.

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It is admitted position that the petitioner has not surrendered before the concerned trial Court.

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The petitioner was convicted and sentenced by the learned Additional Chief Metropolitan Magistrate No.10, Jaipur Metropolitan vide impugned judgment dated 02.05.2019 and in appeal the conviction of petitioner under Section 138 of the NI Act was maintained and petitioner was sentenced as under:-

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Section 138 of N.I. Act:

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One years’ simple imprisonment along with fine of Rs.1,20,000/- and in default of payment of fine to further undergo for one months’ additional S.I.

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Rule 311(3) of the RHC Rules reads as under:-

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“(3) In a case in which a sentence of imprisonment has been awarded, the petition of appeal or the application for revision or an application under Section 561 A Criminal Procedure Code 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 appealled from under sub-section (2A) of Section 426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal.”

(3 of 5)

[2024:RJ-JP:11447]

[CRLR-51/2024]

Hon’ble Apex Court in the matter of Vivek Rai & Anr. V. High Court of Jharkhand through Registrar General: (2015) 12 SCC 86 while interpreting Rule 159 of the Jharkhand High Court, relied upon the judgment of K.M. Nanawati V. State of Bombay and held that:-

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“It is well known practice that generally a revision against conviction and sentence is filed against an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, with the substantive provisions of the Cr.P.C. relied upon by the petitioners.”

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Rule 159 of the Jharkhand High Court is almost pari materia of the Rule 311 of the RHC Rules. Learned appellate court vide impugned judgment dated 18.12.2021 has afÏrmed the judgment and order of conviction passed b the learned trial court vide impugned judgment dated 02.05.2019.

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Undoubtedly, the petitioner did not appear before the learned trial court and also not annexed the certificate of custody as provided in Rule 311(3) of the RHC Rules. 11. Hon’ble Apex Court in the matter of Vivek Rai (supra) further expressed as under:-

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“It has not been dispute even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It cannot thus, be argued that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case. Thus, the exception as found in corresponding Supreme Court Rules that if the court grants exemption from surrender and directs listing of a case, the Rule cannot stand in the way of the Court’s exercise of such

(4 of 5)

[CRLR-51/2024]

[2024:RJ-JP:11447]

jurisdiction, has to be assumed in the impugned Rule.”

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The law laid down in the matter of Vivek Rai ( supra ) makes it clear that inherent power of High Court to exempt the requirement of surrender in exceptional cases and situations may be acted upon. It is also clear from the judgment of Vivek Rai ( supra ) that grant of such exemption depends upon the nature and circumstance of each case. Therefore, considering the fact that parties have arrived at compromise, the defect pointed out by the Registry regarding non-annexing of certification provided under Rule 311(3) of RHC Rules is overruled.

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In the present matter, learned trial court vide impugned judgment dated 02.05.2019 convicted and sentenced the petitioner for one years’ of simple imprisonment and fine of Rs.1,20,000/- and in default of payment of fine, he shall undergo for one month’s additional S.I.

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Considering the law laid down in the matter of Vivek Rai ( supra ) and the fact that petitioner has entered into compromise with the respondent and has paid the entire amount of Rs.1,20,000/- imposed as fine so also looking to the short sentence awarded by the learned trial Court, I consider it just and proper to suspend the sentence awarded to the petitioner.

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Accordingly, the application for suspension of sentence filed under Section 397 read with Section 401 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Additional Chief Judicial Magistrate No.10, Jaipur Metropolitan in Case No.752/2014 (606/2008) vide judgment dated 02.05.2019 as afÏrmed by learned Additional District and Session Judge No.7, Jaipur Metropolitan, Second in Criminal Appeal No.20/2019 vide

[2024:RJ-JP:11447]

[CRLR-51/2024]

(5 of 5)

judgment dated 18.12.2021 against the petitioner Pushpendra Mohan Pathak s/o Shri Jagdish Prasad Pathak, shall remain suspended till final disposal of the aforesaid revision and he shall be released on bail, provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this Court on 08.04.2024 and whenever ordered to do so, till the disposal of the revision on the conditions indicated below:-

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That he/she/they will appear before the trial Court in the month of January of every year till the revision is decided.

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That if the applicant changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

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Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

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The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accusedapplicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused-applicant does not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

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(PRAVEER BHATNAGAR),J

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42-Rahul Joshi

Pushpendra Mohan Pathak Son of Shri Jagdish Prasad Pathak v. Rambabu Gupta Son of Late Shri Nanagram

Case brief

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Pushpendra Mohan Pathak Son of Shri Jagdish Prasad Pathak v. Rambabu Gupta Son of Late Shri Nanagram

Case brief

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What did the court decide?

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