2014 (2) TMI 1402 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - present criminal revision petition has been filed by the petitioner without surrendering before the learned lower Appellate Court - HELD THAT - This Court has every doubt with regard to the maintainability of this criminal revision petition without surrender of the petitioner before learned Court below after dismissal of his appeal. There is no doubt that this Court can suspend the execution of the sentence as per provision contained in Section 401 Cr.P.C. while hearing criminal revision petition but that has to be done only when the petitioner is behind the bars - Concededly it is not a case where the learned lower Appellate Court had suspended the sentence and granted time to the petitioner to file the present petition. In that eventuality on course this Court can accept the prayer and allow him to remain on bail if the provision so permit. The petitioner was not satisfied with the judgment of conviction and the order of sentence passed by the learned Trial Court therefore filed an appeal before the learned Additional Sessions Judge Fast Track Court (Adhoc) Jalandhar but thereafter in the month of February 2013 he absented himself and never appeared before the learned lower Appellate Court therefore the said Court was constrained to pronounce the judgment in the absence of the petitioner. The learned lower Appellate Court also concurred its findings with the judgment delivered by the learned Trial Court and dismissed the appeal - the findings recorded by the learned two Courts below are well based since the respondent-complainant was able to prove that the cheque amounting to 7, 50, 000/- issued by the petitioner- accused in discharge of his legal liability had bounced and in spite of the notice issued by the respondent-complainant the petitioner-accused failed to pay the amount. The evidence led by the respondent-complainant has established his case therefore no ground is made out for interference by this Court while exercising the revisional jurisdiction. Petition dismissed.

Summary

Issues:
Challenge to conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 without surrendering, Maintainability of criminal revision petition without surrender, Suspension of sentence, Prima facie case of the petitioner, Legal liability for bounced cheque, Evidence presented by respondent-complainant, Appeal dismissal due to absence of petitioner, Legality of judgments by lower Courts, Revisional jurisdiction interference.

Analysis:

1. Challenge to Conviction and Sentence under Section 138 of the Negotiable Instruments Act, 1881:
The petitioner challenged his conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881. The petitioner was sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 5,000. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Fast Track Court (Adhoc), Jalandhar.

2. Maintainability of Criminal Revision Petition without Surrendering:
The petitioner filed a criminal revision petition without surrendering before the lower Appellate Court. The petitioner was not in custody at the time of filing the petition, avoiding arrest since the appeal dismissal. The Court expressed doubts about the maintainability of the petition without surrender.

3. Suspension of Sentence and Prima Facie Case:
The petitioner's counsel argued for the suspension of sentence due to the petitioner's injury preventing his attendance in court. The counsel claimed the petitioner had a prima facie good case as both lower Courts wrongly held him guilty under Section 138 of the Act. However, the Court noted that suspension of sentence is typically done when the petitioner is in custody.

4. Legal Liability for Bounced Cheque and Evidence Presented:
The complainant alleged that the petitioner took Rs. 7,50,000 and issued a cheque that bounced due to insufficient funds. The complainant completed formalities and filed a complaint under Section 138 of the Act. Evidence presented by the complainant, including the issuance of the bounced cheque, was crucial in establishing the legal liability of the petitioner.

5. Appeal Dismissal and Legality of Judgments by Lower Courts:
The petitioner filed an appeal against the conviction and sentence but absented himself during the proceedings. The lower Appellate Court dismissed the appeal in the petitioner's absence. Both lower Courts found the complainant's evidence sufficient to prove the petitioner's guilt, leading to the dismissal of the appeal.

6. Revisional Jurisdiction Interference:
The Court, after reviewing the facts and judgments of the lower Courts, found no illegality or perversity in their decisions. The evidence presented by the complainant established the petitioner's legal liability, warranting no interference in the revisional jurisdiction. Therefore, the Court dismissed the criminal revision petition.

Conclusion:
The High Court dismissed the criminal revision petition challenging the conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881. The Court emphasized the importance of surrendering before the lower Appellate Court and noted the sufficiency of evidence presented by the complainant to establish the petitioner's legal liability for the bounced cheque. The Court found no grounds for interference in the lower Courts' judgments, leading to the dismissal of the revision petition.