w w w . L a w y e r S e r v i c e s . i n



Vijaybhai Gaurinath Sarga v/s Rashmikant Ratilal Shah


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    R. Criminal Revision Application No. 488 of 2020

    Decided On, 29 October 2020

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

    For the Appearing Parties: Ashish Dagli, Learned Advocate, Yadav (2395), Sr. Advocate, D.K. Puj (3836), Advocate.



Judgment Text

Oral Order:1. The applicant has filed this Revision application under Section 401 of the Criminal Procedure Code, being aggrieved and dissatisfied with the judgment and order dated 20.08.2020 passed by the learned Additional Sessions Judge, City Civil Court, Court No. 31, Ahmedabad in Criminal Appeal No. 514 of 2018 confirming the judgment and order of learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Court No. 35, Ahmedabad order dated 16.08.2018 convicting the applicant in Criminal Case No. 1007 of 2013 for 1 year simple imprisonment under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the N.I. Act") and compensation of Rupees 3,00,000/- under Section 357(3) of the Code of Criminal Procedure withing 60 days and in default further simple imprisonment of 90 days.2. Heard learned Advocate Mr. Ashish Dagli with learned Advocate Mr. S.R. Yadav for the applicant and learned advocate Mr. D.K. Puj for the Respondent No. 1- original complainant and learned APP Mr. H. K. Patel for the Respondent - State of Gujarat through video conference.3. The applicant has filed this Revision Application with the following prayers:"B. Kindly call for the records and proceedings of Criminal Appeal Number 514 / 18 confirming the sentence passed by Ld. Metropolitan Magistrate in Criminal Case Number 1007/13.C. Kindly stay the execution of order dtd. 16.08.2018 passed by Ld. Metropolitan Magistrate Court No. 35 in Criminal Case No. 1007/13 and order dtd. 20.08.2020 passed in Criminal Appeal No. 514/14 by learned Additional Sessions Judge, Court No. 31 and grant bail to applicant pending admission, hearing and final dispose of revision."Submission of the Parties:4. Learned advocate Mr. Ashish Dagli for the applicant has vehemently argued that in the present case, this is the Revisions Application filed under Section 401 of Cr.PC. Earlier the rule was issued. He further submitted that the issue is with regard to the powers of High Court to suspend the order of sentence. Learned advocate Mr. Dagli in his first limb of argument submitted that as per the judgment of different High Courts and Hon'ble Apex Court, the custody of accused is not sine-quo-non while instituting the revision upon the concurrent findings of trail Court. Further, neither the Code nor the Gujarat High Court Rules provided the mandatory direction or rules for accused to be in custody, therefore, when the case is under the Negotiable Instruments Act, specially for the offences under Section 138 of the Negotiable Instruments Act, wherein the procedure is summary triable and even pleader can give further statement under Section 313 of Cr.PC. He also submitted that as per the judgment of Madras High Court, there is no need of custody of accused and as per the judgment of Bombay High Court, custody of accused is necessary but Hon'ble Supreme Court in the case of Niranjan Singh & Anr Vs. Prabhakar Rajaram kharote & Ors. decided on 10, March, 1980, reported in 1980 AIR 785 and 1980 SCC (2) 559, wherein the Hon'ble Supreme Court has held that deemed custody is required to be observed instead of physical custody of accused.4.1 Learned advocate Mr. Ashish Dagli for the applicant has placed reliance upon the judgment of Madras High Court in case of Easwaramurthy Vs. N. Krishnaswami, reported in 2006(2) MLJ (Cri) 410, 2006 (0) Supreme (Mad) 1319, wherein Madras High Court has held that in the case of offences under Section 138 of the Negotiable Instruments Act, while dealing with the Section 397 of Cr.PC in case of conviction accused need not require to surrender and undergone imprisonment seeking suspension of sentence, the Madras High Court has allowed the Revisions Application, wherein applicant is not able to surrender the Court below thereafter remanded the confirmation of his conviction of sentence passed by the Trial Court. It was held while referring the judgment of Hon'ble Supreme Court in case of Bihari Prasad Singh vs. State of Bihar reported in 2000 (10) SCC 346 and 2000 SCC (Cri) 1380 In the present case, only one thing requires consideration that whether High Court while exercising its revisional jurisdiction or entertain the matter on the grounds that the accused has not surrender under the Provisions of the Cr.PC, there is no such requirement though such provisions instead of Rules of the High Court but it is stated that there is no such rules in the Patna High Court for Revision solely on the ground that the accused has not surrendered therefore, in the present case learned advocate Mr. Ashish Dagli has submitted that in view of the judgment passed by the Madras High Court and also Patna High Court such Rules were not available likewise High Court also as such there is no Rules regarding the custody of accused at the time of filing of Revision Application. Therefore, present Revision Application may kindly be admitted and accused may be enlarged on bail, since it is summary trial and revisionalist has also deposited in all 75% of amount. He further submitted that the applicant is aged about 71 years suffering from different ailments, therefore in this special case also he may be bail out with consideration as deemed custody and the applicant would be ready to abide by any conditions.5. Per Contra, learned advocate Mr. D.K. Puj has heavily opposed the arguments advanced by the revisionalist and submitted that as such there is no provision in the Cr.PC, wherein, if accused is not in custody, in that case, revision can be entertained. He further submitted submitted that learned Sessions Court has no powers to suspend the conviction and sentence when learned Sessions Court has affirmed the order of learned Magistrate Court, on the contrary learned Sessions Court has given 7 days time to surrender before the learned Magistrate Court, thereafter, learned Magistrate Court was directed to issue warrant in case of non compliance. Here accused was present at the time of decision was given by the learned Sessions Court on virtual base (Video Conference) that Revision is not maintainable.6. Learned APP Mr. H.K. Patel for the State has submitted that normally Courts grant 30 or 60 days time but in the present case only one week time was granted which is also not proper and Section 389 of CrPC requires the presence of accused. The Appellate Court has no powers, therefore, he joined with the arguments of learned advocate Mr. D.K. Puj for the original complainant.7. In Re- learned advocate Mr. Dagli added in his arguments that this is the special case wherein 75% amount of the total compensation is already deposited and applicant/revisionalist is 71 years of age having many ailments, it was the Covid-19 status. This Court has considered as deemed custody. There is no change of hampering and tampering with evidence and witnesses and no chance of run away and therefore, in special case this Revision Application may be proceeded.8. In Re- learned advocate Mr. D.K. Puj has submitted that in earlier case accused was not present in the Court, in our case accused was present at the time of pronouncement of judgment at the trial Court, therefore, facts and circumstances are different and therefore, custody of the accused is must.9. Learned advocate Mr. Dagli has also place reliance on the judgment Bihari Prasad Singh vs. State of Bihar (Supra) reported in 2000 (10) SCC 346 and 2000 SCC (Cri) 1380, wherein the Rules by the Patna High Court were not framed therefore, this case may be considered as special case. Lastly in-Re learned advocate Mr. D.K. Puj for the original complainant has submitted that upon such position and considering all law and procedure, the accused is required to be surrendered while entertaining the Revision Application.10. Having heard the arguments advanced by all the sides, very short issue centering around is whether revision application is maintainable solely on the ground of non custody of accused while entertaining revision application under Section 397 of the Code of Criminal Procedure by this Court(?).11. Since present petition is under Section 401 of the Code, therefore, it would be appropriate to refer to Section 401 of the Cr.PC, as it is:Sec. 401 High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction.(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."Learned advocate has also in addition to this referred the powers of both of this Court under Section 397 of the Code, hence Section 397 of the Code is read as under:"Sec. 397 - Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding,sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."11.1 Pursuant to the plain reading of Section 397 of the Code, it appears either High Court or any Sessions Judge can direct any order be suspended if the accused is in confinement that he be released on bail or pending the examination of the report, but whenever there is concurrent findings & conviction of two Courts, learned Sessions Judge is not empowered to suspend the sentence.12. Learned Advocate Mr. D. K. Puj for the Respondent No. 1 has vehemently emphasized to buttress his argument that under Section 389(3) of the Cr.PC, learned Sessions Court has not empowered for suspending the sentence. Section 389 of the Code reads as under:"Sec. 389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.](2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,--(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."12.1 It appears that object of legislation is to make the accused person sincere about his presence to ensure that the person who has been convicted by two Courts obeys the law and does not abscond.13. Pursuant to the plain reading of Section 389(3) of the Cr.PC, this Court is agreed that arguments advanced by the learned advocate Mr. Puj for the Respondent No. 1 that concerned learned Sessions Judge is not empowered to suspend the sentence on the contrary, learned Sessions Judge has given one week time to surrender before the concerned learned Metropolitan Magistrate Court if the applicant fails, in that case, learned Metropolitan Magistrate Court, shall be empowered to issue warrant, which appears against the principles of settled law. There is nothing on record so far as the issuance of warrant is concerned but one thing is true that accused is not behind the bar and preferred this revision application, identical issue was before this Court in Vijaykumar Shantilal Tadvi vs. State of Gujarat decided on 11.06.2007 reported in (3) GLR 2743, wherein this Court has held that there is no question of suspension of order of conviction nor it was prayed before the trial Court. On the contrary, this Court is inclined to observe that it is the previlege of the accused to insist for bail even after the order of conviction and sentence under Sub-section (3) of Section 389 of the Code of Criminal Procedure, if the amount of fine has been paid and quantum of punishment is less than three years especially when there is no other reasons to refuse the discretionary relief. Though, the relief that can be granted under Sub-section (3) of Section 389 of the Code is crucial, but the learned trial Judge has to play a very little role while dealing with the bail plea in a case where the accused was asked to undergo punishment for a period less than three years and the amount of fine imposed by the trial Court is paid. In that very fact situation, even the appellate Court normally should not refuse the bail. The Court is conscious that bail is a rule and jail is an exception is no longer a good law, but certain categories of cases obviously would fall in the class where the refusal of bail can be equated with denial of legitimate freedom of personal liberty even in absence of presumption as to innocence.14. In the present case, the punishment is less than three years ie. applicant is convicted only for one year, therefore, this Court is empowered to pass the order of bail with suspension of sentence, not only that but identical issue was also before the Madras High Court in the case of Easwaramurthy Vs. N.Krishnaswamy reported in 2006 2 MLJ (Cri) 410 decided on 14.06.2006, wherein it was held that under Section 397 of the Cr.PC, so far as case is related to dishonour of cheque under Section 138 of the Negotiable Instruments Act, some paras reads as under:""6. In view of the above said decision of the Hon'ble Supreme Court as well as the decision rendered by his Lordship Justice Khalid (as he then was), it is well settled that in respect of the revision against conviction and sentence, 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."7. In view of the above, I am of the considered view that in these matters, more particularly in respect of any revision against conviction that 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.8. However, the Revisional Court may decline to exercise the power Under Section 397(1) Crl.P.C. to suspend the sentence imposed on the accused, considering the merits of each case, in respect of seriousness and gravity of the offence and also the antecedents of the accused coupled with the clinching materials available on record against the accused.9. In view of the aforesaid discussion and in view of the settled principles of law by the Hon'ble Supreme Court as well as by His Lordship Justice Khalid (as he then was) as stated above, I am of the considered view, that the revision applicant herein Is entitled to the relief of grant of suspension of sentence to undergo one year simple Imprisonment and a fine of Rs. 5,000/- in default to undergo SI for six months for the offence Under Section 138 of N.I. Act imposed on him by the learned Judicial Magistrate No. II, Pollachi in C.C. No. 73 of 2002 dated 5.7.2005 and modifying the sentence into one of three months SI and confirming the fine of Rs. 5,000/- in C.A. No. 340 of 2005 on the file of Additional District and Sessions Judge and Presiding Officer, Special Judge for EC Act Cases at Coimbatore dated 22.4.2006.10. Therefore, the applicant's sentence viz., to undergo one year simple imprisonment and a fine of Rs. 5,000/- in default to undergo SI for six months for the offence Under Section 138 of N.I. Act imposed on him by the learned Judicial Magistrate No. II, Pollachi in C.C. No. 73 of 2002 dated 5.7.2005 and modifying the sentence into one of three months SI and confirming the fine of Rs. 5,000/- in C.A. No. 340 of 2005 on the file of Additional District and Sessions Judge and Presiding Officer, special Judge for EC Act Cases at Coimbatore dated 21.4.2006, is suspended on his executing a bond for a sum of Rs. 10,000/- (rupees ten thousand only) with two sureties each for a like sum to the satisfaction of learned Judicial Magistrate No. 2, Pollachi subject to the condition that the applicant shall appear before the said Court on the first working day of every month pending the revision. The applicant shall execute the bond within a period of three weeks from the date of receipt of copy of this order, failing which this order shall stand automatically cancelled. Accordingly, this Crl. M.P. No. 3498 of 2006 is disposed of."15. Learned advocate Mr. Dagli has heavily placed reliance on the judgment Bihari Prasad Singh vs. State of Bihar (Supra) reported in 2000 (10) SCC 346 and 2000 SCC (Cri) 1380, wherein identical question come up before the Hon'ble Supreme Court whether revision application can be dismissed solely on the grounds of accused has not surrendered, reply was given in Para -3, which reads as under:"Para 3:- Under the Provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered."15.1 In the present case also this Court (Gujarat High Court) has not framed any Rules for that issue, therefore, Revision application cannot be dismissed solely on the grounds of accused has not surrendered.15.2 This Court has also observed the judgment of Delhi High Court in case of Pritika Fashions Pvt. Ltd & Ors vs. State & Ors decided on 29.11.2018. The only object behind a person being taken into custody after dismissal of the appeal would have been to ensure that if the person has been convicted by two concurrent judgments of conviction, he must obey the rule and surrender. This should also be for the purpose of preventing the person from absconding from the process of law. The concerned Court of Additional Sessions Judge be informed that the petitioner No. 2 had not surrendered and action immediately be initiated against him as per law under intimation to this Court.15.3 Learned advocate Mr. Dagli has also placed reliance on judgment in case of Niranjan Singh & Anr Vs. Pra

Please Login To View The Full Judgment!

bhakar Rajaram kharote & Ors. (Supra) of the Hon'ble Apex Court but same is under Section 439 of the Cr.PC, at present this authority is not applicable.16. Learned advocate Mr. Puj for the respondent No. 1- original complainant has further submitted that in our case accused has surrendered, therefore, this authority is not applicable but in view of the this Court, accused has already surrendered in video conference at the time of pronouncement of judgment by learned Additional Sessions Judge, since in contemporary status of Corona Virus, the Court is functioning virtually. Learned APP has submitted that normally, the Court gives 30 days time without suspension of sentence to approach this Court but here learned Sessions Judge has given only 7 days time, that issue will be dealt in future but at this juncture, when the applicant is 71 years old, who has already deposited 75% (in all 65% + 10%) amount of total compensation and offence is under N.I. Act which is summary triable where in maximum punishment is 2 years and here sentence awarded only 1 year and the revision application is filed in contemporary situation of Corona Virus. Upon such premises, without discussing much issue of custody in detail, this Court is inclined to suspense the sentence and enlarge the applicant on bail on executing the personal bond of Rs. 10,000/- and surety of the like amount to the satisfaction of the trial Court on usual terms and conditions and sentence is suspended till the conclusion of this Revision Application.17. Upon all such discussion, it is made clear that this Court has not entered into the merits of the case except suspension of sentence for the offence under Section 138 of the Negotiable Instruments Act, which is concurrently confirmed by the learned trial Court. This Court stay the execution of sentence dated 16.08.2018 passed by learned Additional Chief Metropolitan Magistrate Court No. 35, Ahmedabad in Criminal Case No. 1007 of 13 and order dated 20.08.2020 passed in Criminal Appeal No. 514 of 18 by learned Additional Sessions Judge, City Civil Court, Court No. 31, Ahmedabad, convicting the applicant till the conclusion of this Revision Application.18. In the peculiar facts and circumstances of the case bail is granted and this order may not be treated as precedent in all matters in future.19. Registry to call for R & P from the concerned trial Court and list this Revision Application as per seriatim.
O R