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PUNJAB AND HARYANA HIGH COURT
Daya Chaudhary, J.
M/s Electromech Engineers through its proprietor Sh. D.P. Sharma —Petitioner
versus
State of Haryana & Anr. —Respondents
Crl. Misc. No.16966 of 2014 and Crl. Revision No.1640 of 2014 (O&M)
Decided on 9.10.2014
Counsel for the Parties:
For the Petitioner:Mr. SS Dahiya, Advocate
For the Respondents: Mr. Pradeep Virk, DAG, Haryana
For the Respondent No.2:Mr. G.P. Singh, Advocate
IMPORTANT POINT
Revisional Court may decline to exercise power under S. 397 (1) Cr. PC to suspend sentence after considering merits of each case.
Headnote:Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 389 — Petitioner not present before appellate Court at time of pronouncement of judgment — No sufficient reason come forward for not appearing — In spite of undertaking given before Court to deposit amount of cheque in dispute — Petitioner only deposited Rs. 30 lacs out of Rs. 45 lacs — HELD — Offence is bailable and he deposited amount of Rs. 30 lacs out of Rs. 45 lacs — Revision admitted — Application disposed of with direction that in case petitioner surrenders before trial Court and deposits remaining amount — Sentence imposed upon him shall remain suspended during pendency of revision petition. [Para 20]
Result: Petition disposed of
Daya Chaudhary, J.—The present petitioner faced trial for offence punishable under Section 138 of Negotiable Instrument Act in Criminal Complaint No. 600 dated 30.10.2007/2.3.2012 and was convicted by the trial Court vide its judgment dated 4.3.2013 and sentenced to undergo RI for a period of one year for offence punishable under Section 138 of Negotiable Instruments Act and further to pay compensation to the tune of Rs. 45 lacs in terms of Section 357 (3) Cr.P.C. to the complainant within a period of two months from the date of passing of order and in default of payment of compensation the petitioner was to further undergo RI for a period of three months in view of law laid down by Hon’ble the Apex Court in case of Hari Singh Vs. Sukhbir Singh, 1988 (4) SCC 551.
2. Aforesaid judgment of conviction and order of sentence was challenged by way of filing an appeal before Additional Sessions Judge, Yamuna Nagar, which was dismissed vide judgment dated 17.4.2014 and judgment of conviction and order of sentence passed by the trial Court was upheld.
3. After loosing the case before the two courts below, the present revision petition has been filed by raising various arguments.
Revision requires consideration and the same is admitted.
CRL. MISC. NO. 16966 OF 2014
4. Vide order dated 26.5.2014, learned counsel for the petitioner made a submission that the petitioner is ready to deposit the amount of cheque in dispute to contest the judgment of conviction on merit. Accordingly, the amount of cheque was ordered to be deposited in the shape of fixed deposit for a period of three years in the name of Registrar General of this Court within a period of 45 days and the case was adjourned for 8.7.2014. On 8.7.2014, learned counsel for the petitioner had produced before this Court FDR No. 5145139 dated 1.7.2014 in the name of Registrar of this Court for a period of three years and accordingly, notice of motion was issued. It was also brought to the notice of the Court on that date that the petitioner has not surrendered after dismissal of his appeal and hence is not in custody.
5. In response to notice of motion, Mr. G.P. Singh, Advocate appeared on behalf of respondent No.2 on 30.7.2014 and submitted that the petitioner has not surrendered after dismissal of his appeal before the lower appellate Court and order of suspension of sentence cannot be passed without his surrendering before the Court. The case was adjourned on the request of learned counsel for the parties to address arguments as to whether the arrest/surrender of accused is necessary before passing of order of suspension of sentence.
6. Learned counsel for the petitioner submits that there is no such provision under Cr.P.C. which says that surrender is necessary for issuing direction for suspension of sentence and revision is maintainable in case the petitioner has not surrendered or was not present before the lower appellate Court. Learned counsel further submits that an amount of Rs. 30 lacs has already been deposited before this Court as per undertaking given by the petitioner. Learned counsel for the petitioner has relied upon the judgment of Hon’ble the Apex Court in the case of Bihari Prasad Singh Vs. State of Bihar and another, 2000 SCC (Cri) 1380 as well as of Madras High Court in the case of Easwaramurthy Vs. N. Krishnaswamy, 2006 CrI.L.J. 4105 in support of his contentions.
7. On the other hand, learned counsel for respondent No.2 while relying upon the judgment of this Court in the case of Satish Tandon Vs. State of Punjab and another, 2014 (1) DCR 396 as well as of Rajasthan High Court in Madan Singh Panwar Vs. State of Rajasthan and another passed in Crl. Revn. Petition No. 659/2011 decided on 16.9.2000 submits that for suspension of sentence, surrendering by the accused is necessary.
8. Heard the arguments advanced by learned counsel for the parties and have also gone through the documents available on record.
9. Admittedly, the petitioner was not present at th
