IMPORTANT POINT
For granting the relief of suspension of sentence, the accused need not, surrender and undergo confinement and filing revision without surrendering and confinement is well within the power contemplated under Section 397(1) of Cr.P.C.

K.N. Basha, J.—This petition coming on for orders upon perusing the petition filed in support thereof and upon hearing the arguments of M/s. T.A. Omprakash, Advocate for the petitioner, the court made the following order:-

Learned counsel for the petitioner submit that the petitioner has been convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year rigorous imprisonment and to pay a sum of Rs. 2,00,000/- within three months.

2. Learned counsel for the petitioner submit that there are arguable points involved in this revision. It is submitted by the learned counsel for the petitioner that the petitioner has rebutted the presumption contemplated under Section 139 of the Negotiable Instruments Act as there is absolutely no legally enforceable liability on his part. Learned counsel for the petitioner further submit that there are enough materials available on record through cross-examination of the witnesses to show that there is no legally enforceable liability. It is also submitted that in view of the ill-health of the petitioners, the petitioners did not surrender before the Court.

3. In respect of the contention raised by the learned counsel for the petitioner, it is relevant to note the settled principles of law laid down by the Honourable Supreme Court of India reported in Bihari Prasad Singh v. State of Bihar and another.1 In the above said decision, Their Lordships have held that for seeking suspension of sentence, the accused need not be under confinement.

4. In respect of the same question of law viz., whether the accused concerned in the revision against conviction, have to surrender and thereafter only seek the relief of suspension of sentence, the Honourable Mr. Justice Khalid (as he then was) has held in the decision reported in Ibrahim v. State of Kerala2 that for granting the relief of suspension of sentence, the accused need not surrender and undergo confinement and filing revision without surrendering and confinement is well within the power contemplated under Section 397(1) of Cr. P.C. as Section 397 (1) Cr.P.C. itself is very clear that there is absolutely no ambiguity as the reading of the words “direct that execution of any sentence or order be suspended”.

5. In view of the above, this Court is of the considered view that in this matter, more particularly in respect of any revision against conviction the accused need not surrender and undergo confinement for seeking the relief of suspension of sentence pending disposal of the criminal revision. The Courts are coming across the difficulties of the accused and more particularly in the cases under Section 138 of N.I. Act and other compoundable offences where there is possibility of compounding the offence within a short period and in such event, insisting upon the accused concerned to undergo the confinement for seeking the relief of suspension of sentence, may result in miscarriage of justice.

6. A perusal of the impugned Judgment of conviction shows that there are arguable points involved in this appeal. The defence raised contention to the effect that the accused has rebutted the presumption contemplated under Section 139 of N.I. Act in respect of legally enforceable liability on the part of the accused.

7. In view of the aforesaid discussion and in view of the settled principles of law by the Honourable Supreme Court as well as by His Lordship Justice Khalid (as he then was), as stated above, and also considering the fact that the revision may not be taken up for final hearing in the near future, this court is of the considered view, that the revision petitioner herein is entitled to the relief of grant of suspension of sentence. Accordingly, the substantive sentence of imprisonment alone is suspended on condition that the petitioner shall execute a bond for a sum of Rs. 10,000/- (Rupees Ten thousand only) each with two sureties each for a like sum to the satisfaction of the learned Judicial Mag