The appellate court's power to suspend sentences under Section 389 Cr.P.C is limited to exceptional circumstances; failure to comply with procedural rules results in denial of suspension.

ORDER :

Praveer Bhatnagar, J.

The accused-petitioner Shankarlal Agarwal has preferred an application under Section 389 Cr.P.C for suspending the sentence during the pendency of the criminal revision filed against the order and judgment dated 18.11.2023 passed by learned Additional Sessions Judge No.2, Jaipur Metropolitan First, in Criminal Appeal No.05/2020 whereby, judgment dated 05.12.2019 passed by Special Metropolitan Magistrate (N.I. Act Cases) No.11, Jaipur Metropolitan, Jaipur was affirmed and accused-petitioner was convicted for the offences under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act of 1881") and was sentenced to undergo one year simple imprisonment with a fine of Rs. 14,00,000/-, in default of payment of fine which he was further ordered to undergo three months' simple imprisonment.

2. Learned counsel for the accused-petitioner submits that accused-petitioner has wrongly been convicted and sentenced by the learned appellate court. He further submits that complainant has admitted that he has received Rs. 2,00,000/- and only Rs. 7,17,500/- is in balance. The amount is not related to complainant's company and related to other company viz M/s Rakesh Textile. Thus, there is merit in his case and decision of revision petition may take considerable time and application of the accused-petitioner for suspending the sentence may be allowed. The accused-petitioner has deposited the amount under Section 138 of the Act of 1881 before the learned appellate court while preferring the appeal against the conviction and sentence, recorded by the learned trial court. He further submits that due to some unavoidable circumstances he could not marked his presence before the learned appellate court. Rule 311 of the Rules of the High Court of Judicature for Rajasthan (hereinafter referred to as "the Rules") is not mandatory and right of the accused-petitioner cannot be obliterated. He also argues that learned appellate court vide impugned judgment dated 18.11.2023 at page 23 has directed the appellant to appear before the learned trial court for undergoing the sentence, therefore, the application of accused-petitioner may be allowed. He places reliance on the following judgments: -

A. 2021 (0) Supreme (SC) 1115 R. Kalai Selvi v. Bheemappa.

B. Special Leave to Appeal (Crl.) Nos.5621/2022: Ashok Kumar Sharmar v. The State of Rajasthan & Anr.

C. 2011 (1) RLW 659 (Raj.): Vishnu Teli v. State of Rajasthan & Anr.

D. 2023 (0) Supreme (SC) 855: Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. & Ors.

3. Learned counsel appearing for the complainant submits that this application is not maintainable and learned appellate court has no power to grant relaxation to the accused-petitioner after affirming the judgment of conviction and sentence passed by the learned trial court. He further submits that in view of the Rule of 311 it is obligatory upon the accused-petitioner to surrender before the concerned trial court for undergoing the sentence. He further contends that the certificate given by the accused-petitioner is not in accordance with the Rule of 311 (3). He placed reliance on the judgment passed in Patna High Court's judgment dated 14.09.2023 passed in Criminal Revision No.176/2023: Shivjag Paswan & Ors. v. The State of Bihar and (2015) 12 SCC 86 Vivek Rai & Anr v. High Court of Jharkhand through Registrar General. Therefore, application for suspension of sentence may be dismissed.

4. Heard learned counsel for both the parties, perused the material available on record and gone through the judgments cited by both the parties.

5. Hon'ble the Apex Court in the matter of Vivek Rai (supra) while interpreting the Rule 159 of the Jharkhant High Court, relied upon the judgment of K.M. Nanawati v. State of Bombay and held that: -

"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