Thus, taking note of all these pronouncements would make it clear that in fact, there is a duty on the Appellate Court i.e. Sessions Judge (including Additional Sessions Judge) to see that the Judgment in appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353(6) of the Code) and to take such appellant in custody upon the confirmation of the conviction. The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated. This is the practice adopted in the present case also and therefore, the point has been considered in detail.
Bombay High Court
JUSTICE Smt. Vibha Kankanwadi
Fazal Khalil Ahemad Shaikh Vs. Nandkishor Ramnivasji Agrawal & Anr.
CRIMINAL APPLICATION NO. 2743 OF 2019
12th June 2020
Citation: 2020 NearLaw (BombayHC Aurangabad) Online 1582
1. Present application has been filed by the original accused for suspension of substantive sentence, during the pendency of the revision, imposed against him in S.T.C.C. No.937/2009 by learned Judicial Magistrate First Class (Court No.5), Latur on 15.04.2015 after holding him guilty of committing offence punishable under Section 138 of the Negotiable Instruments Act; which has been thereafter confirmed by the learned Additional Sessions Judge-4, Latur on 04.05.2019 in Criminal Appeal No.50/2015.
2. Heard learned Advocate Mr. T.M. Venjane for the applicant, learned Advocate Mr. M.P. Kale for respondent No.1-original complainant and learned APP Mr. B.V. Virdhe for respondent No.2-State.
3. It has been vehemently submitted on behalf of the present applicant-original accused, that both the Courts below have not appreciated the evidence properly. They erred in holding the accused guilty of committing offence punishable under Section 138 of the Negotiable Instruments Act. It was the defence of the accused, that the disputed signed cheque as well as two other signed cheques as well as one blank cheque was taken by the complainant, as a security towards the financial transaction with him, in the year 2006-07. That amount was repaid by the accused to the complainant. However, the complainant has misused one of those cheques. The accused has led evidence in defence. Two postmen were examined. So also the applicant has produced documentary evidence in the form of Ration card, Gas connection card, Electricity bill, statement of Bank account, Income Tax return. All the said defence evidence was to show, that he has not received the statutory notice and his address is something different than the address on which the statutory notice was issued. The defence of the accused has not been considered by both the Courts below. If they would have considered it, they would have definitely arrived at the conclusion, that the accused has rebutted the presumption of Section 139 of the Negotiable Instruments Act. Both the Courts below failed to consider that the disputed cheque Exh.34 was crossed cheque, and therefore, the provisions of Section 138 of the Negotiable Instruments Act were not applicable. Both the Courts failed to consider that there was material alternation of digits of dates. Further, the complainant failed to prove the statement of his Bank account to show that he had extended loan to the accused. Presumptions under Section 118 and 139 of the Negotiable Instruments Act were rebuttable presumptions. It was necessary for the complainant to prove the basic facts to attract the presumptions. Complainant had failed to prove the pre-existing liability prior to the date of the disputed cheque. In other words, the complainant had failed to prove that the disputed cheque was issued in discharge of legal debt or liability. There is possibility of every success in favour of the present applicant, and therefore, sentence deserves to be suspended till the disposal of the revision.
4. Per contra, the learned Advocate appearing for respondent No.1 raised preliminary objection, that after the Judgment in the Criminal Appeal was pronounced, the present revision applicant has not surrendered before either the Appellate Court or the Trial Court and he is misusing the liberty, though he has been convicted. It was necessary for the learned Appellate Court to take the appellant in custody when the Judgment was pronounced. He relied on the decision by this Court in Moinoddin Khodboddin vs. State of Maharashtra, 2003 STPL 3743 Bombay, wherein after taking note of the decision in Dilip Ramchandra Umare vs. State of Maharashtra, 1996 Cri.L.J. 721 this Court held, that the course available to the subordinate Appellate Court is to take the appellant in custody after the dismissal of the appeal and then it would be subject to the orders of the High Court in revision to suspend the sentence and grant bail.
5. It has been further submitted that both the Courts below have appreciated the evidence properly. The accused has not disputed that he is the author of the disputed cheque. He has also not disputed that he had handed over that cheque to the complainant. The complainant has proved that accused used to take financial assistance since about 5-6 years prior to the complaint, from time to time. It was the hand loan for the purpose of business and the outstanding balance for the year ending 31.03.2007 was Rs.10,00,000/-. Further, the accused has again demanded hand loan in the month of July, 2007 to the tune of Rs.2,00,000/-. That amount was extended by the complainant through cheque dated 16.07.2007. Again accused had approached the complainant to demand amount of Rs.6,00,000/- in October, 2007, at that time, the complainant demanded amount of previous loan. However, on the basis of promise that amount was also given through cheque on 23.10.2007. Thereafter in discharge of the said legal debt or liability, accused issued cheque of Rs.8,00,000/- on 20.12.2007. However, he had prayed that it should not be deposited till the end of May, 2008. Thereupon the complainant had deposited the said cheque for encashment on 10.06.2007, however, it was dishonoured. Statutory notice was issued, however, the accused had managed the postman to give false remark on RPAD. However, the notices through UPC were duly served. Inspite of the receipt of notice through UPC, when amount under the cheque was not given by the accused, complaint was lodged. The evidence of the complainant supports the documentary evidence. Both the Courts below have correctly held, that the notice sent through UPC has been duly served. It was also held, that the accused has failed to rebut the fact that the accused has no connection with the address stated on the statutory notice. When well reasoned Judgment and order has been passed after proper appreciation of evidence and when it is confirmed by the Appellate Court also, where the appellant had every opportunity to point out the factual aspects as well as legal aspects, no case can be said to have been made for even suspending the sentence awarded against the accused.
6. In reply, the learned Advocate for the applicant has relied on the decision of this Court in Ramesh Murlidhar Sharma vs. The State of Maharashtra and another in Criminal Revision Application No.42 of 2019 decided on 12.02.2019, wherein this Court after taking into consideration the decision in Ibrahim vs. State of Kerala, 1979 KLT 857 and ESWARAMURTHY VS. n. Krishnaswamy, 2006 Cri.L.J. 4105 has observed that for grant of relief of suspension of sentence, the accused need not surrender and undergo confinement in terms of provisions of Section 397(1) of the Code of Criminal Procedure. He, therefore, submitted that the applicant was not required to surrender before any of the Courts.
7. At the outset, the point, that is required to be considered is, that whether this Court should direct the applicant to surrender before any of the Courts below and then entertain his application for suspension of sentence. Further, it will not be out of place to mention here, that the present revision was not filed by the revision applicant within limitation. It was filed along with delay condonation application and then Court by order dated 08.11.2019 had condoned the delay, and thereafter called the Record and Proceedings. After the Record and Proceedings has arrived the revision is yet to be admitted. Under such circumstance, it is required to be seen, as to whether before admitting the revision and while dealing with this application whether it is necessary first to direct the applicant to surrender himself.
8. Another fact, that is required to be considered is, that in Ramesh Murlidhar Sharma’s case when the order dated 12.02.2019 was passed, it was the application, which was decided in respect of suspension of substantive part of the sentence. At that time, the decision of this Court in earlier matters i.e. Moinoddin Khodboddin (supra) as well as Dilip Ramchandra Umare (supra) were not pointed out, though in Moinoddin Khodboddin (supra) as well as Dilip Ramchandra Umare (supra) this Court has considered the powers under Section 386, 387 and 389 of the Code of Criminal Procedure. Dilip Ramchandra Umare was the first in time and the point, which was dealt with, was - “The first and the foremost point which requires to be considered before I advert to the arguments advanced by the learned counsel for the applicant is whether the lower appellate Court under the Code of Criminal Procedure, 1973 has power to suspend the sentence or grant bail to enable the accused to prefer revision application before High Court after the appeal against the conviction and sentence has been decided.” This Court observed that, “the Code does not confer any inherent jurisdiction on the lower Appellate Court to directly or indirectly suspend the sentence after decision of the appeal”. It was held, that the lower Appellate Court after deciding the appeal becomes functus officio and ceases to have any power in the matter to suspend the sentence for grant of bail even temporarily. The same ratio was confirmed in Moinoddin Khodboddin (supra) and further observations were made -
“14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words “shall not” incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Section 353(5) and 535(6). provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are “shall apply”. The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/applicant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as observed in the matter of Dilip vs. State of Maharashtra (supra), the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision.
15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding “warrant to jailor, in the case of a prisoner at first released on bail pending the disposal of appeal to the Appellate Court, but subsequently rearrested in Court on the dismissal of the appeal or reduction or alternation of sentence, and forwarded to jail to undergo the remaining portion of the sentence”. The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellate cannot be directed to surrender to the trial Court for issuance of conviction warrant.”
It will not be out of place to mention para No.16 of the said Judgment also -
“16. These are not the issues relating to decision of present revision petition on merits. Since the operative part of the order of learned Sessions Judge requires rectification, at least in future, above discussion for the purpose of enabling the Sessions Court to follow correct procedure in future.”
Thus, even in 2003 this Court had impressed the Appellate Courts to follow correct procedure in future. Yet, it appears that the Appellate Court in the present case pronounced the Judgment on 04.05.2019 in absence of the appellant-accused. Section 387 of Cr.P.C. deals with Judgment of subordinate Appellate Court and it provides that the rule contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate. The proviso provides that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered. That means, if directions/ order is passed by the Appellate Court for exemption of the accused, then only the Judgment can be pronounced in absence of the accused; otherwise his presence should be secured before the Judgment is pronounced. When rules contained in Chapter XXVII of the Code are made applicable i.e. especially section 353 of the Code, the only exception provided is in sub section (6), which provides that if the accused is not in custody, he shall be required by the Court to attend to hear the Judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. Thus, only when the accused is to be acquitted or the sentence is of fine only and his personal attendance during trial was dispensed with, the exemption can be granted to the accused from remaining present at the time of the delivery of the judgment. No doubt, sub section (7) of Section 353 of the Code provides, that no judgment delivered by any Criminal Court shall be deemed to be invalid by the reason only in absence of any party, however, the Appellate Court cannot insist upon invoking sub section (7) of Section 353 of the Code if there was no endeavour on its part to secure the presence of the accused, and therefore, this Court in Moinoddin Khodboddin (supra) had pointed out even the form XV provided in the Criminal Manual which is in respect of warrant to jailer. This procedure was, in fact, contemplated in the present case also, from the First Appellate Court.
9. It will not be out of place, in order to have a detailed discussion on the point, to take note of some other decisions. Even prior to Dilip Umare’s case, this Court Bench at Nagpur in State of Maharashtra vs. Bhagwan Zingu Wardhe, 1982 Mh.L.J. 134 has observed that the power of granting bail to a convicted person must flow from the provisions of Section 389 and the High Court has no power in exercise of its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. It was then held that the Appellate Court is not a convicting Court. Therefore, the Appellate Court in this case was only the Court which has confirmed the conviction and on the day of the Judgment itself it ought to have taken the appellant in custody. Further in Vivek Rai and another vs. High Court Jharkhand Through Registrar General and others, (2015) 12 SCC 86 it has observed -
“It is well-known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in the Court itself. The object of the Rule is to ensure that a person who has been convicted by two Courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner conflict with the substantive provisions of Cr.P.C. relied upon by the petitioners.”
In the said case the petitioners were convicted and sentenced for the offence under Section 498-A of the Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act. Against the said conviction and sentence, their appeal was dismissed and revision petition was filed before the High Court but the same was not registered on account of Rule 159 of Jharkhand High Court as they had failed to surrender to custody, and therefore, the said rule itself was challenged as violative of Articles 14 and 21 of the Constitution of India and the provisions of Section 397 and 401 of Cr.P.C.. The rule was upheld by the Hon’ble Apex Court.
10. Further, the Delhi High Court in Pritika Fashions Pvt. Ltd. and others vs. State and others, MANU/DE/4481/2018 has relied on the decision of this Court in Moinoddin Khodboddin (supra), two Judgments of Rajasthan High Court, one Judgment of Punjab and Haryana High Court and the Apex Court decision in Vivek Rai and another (supra) and observed that -
“The only object behind a person being taken into custody after the 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.”
Note can also be taken of the observations in Mayuram Subramanian Srinivasan vs. CBI, (2006) 5 SCC 752 in his concurrent Judgments Hon'ble Justice Altamas Kabir has observed thus,
“16. It has been submitted that the statutory provisions of Section 389(3) Cr.P.C. have an overriding effect over the Supreme Court Rules and hence once bail has been granted to a convicted person by the trial court, this Court cannot insist that he should surrender to the sentence in terms of Rule 13-A before his appeal can be registered.
17. While such a submission is attractive, it does not stand scrutiny for the simple reason that sub-section (3) of Section 389 Cr.P.C. empowers the trial court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the appellate court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended.”
Thus, taking note of all these pronouncements would make it clear that in fact, there is a duty on the Appellate Court i.e. Sessions Judge (including Additional Sessions Judge) to see that the Judgment in appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353(6) of the Code) and to take such appellant in custody upon the confirmation of the conviction. The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated. This is the practice adopted in the present case also and therefore, the point has been considered in detail.
11. However, it remains to be seen as to whether now in the present case, whether this Court can direct the revision applicant to surrender himself before the Appellate Court and then take up his revision for hearing and the answer lies in the decision in Bihari Prasad Singh vs. State of Bihar and another, (2000) 10 SCC 346. The only question before the Apex Court was, whether the High Court while exercising its jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered. It was observed that -
“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.”
With this High Court also there are no such specific rules. In Moinoddin Khodboddin’s case (supra), the form of warrant provided in Criminal Manual was referred, but it would be used only if the accused is present at the time of delivery of the Judgment and then he is taken in custody and is required to be transmitted to the jail authorities. Therefore, this Court cannot reject the revision application, on the ground, that the accused has not surrendered, and therefore, there is no bar in considering the present application.
12. As aforesaid, the facts were very clear. The complainant had come with a case that he has extended loan amount, from time to time, and the disputed cheque was given by the accused in discharge of said legal debt or liability. Accused has taken a defence that he had already given certain cheques in possession of the complainant and one of the said cheques has been misused. He has led evidence and in his defence he tried to show, that the presumption under Section 139 of the Negotiable Instruments Act has been rebutted by him. Definitely arguable case has been made, and therefore, revision deserves to be admitted. No separate order is required to be passed for admitting the revision and when the revision would be admitted and the points, those are raised by the revision applicant, are required to be considered, at the time of revision. Further, in a summary proceedings, revision applicant has been convicted. He was on bail throughout the trial as well as appeal. Under such circumstance, definitely case is made out for suspension of substantive sentence imposed on him. The revision applicant was sentenced to suffer simple imprisonment for six months and the compensation to the tune of Rs.8,00,000/- has been awarded under Section 357 (3) of Cr.P.C.. Further, this Court while passing first order on 27.08.2019 and 18.09.2019 had directed the revision applicant to deposit amount of Rs.4,00,000/- and it appears that the said amount has been deposited, which comes to about 50% of the compensation. It would be in the interest of justice to suspend the substantive part of the sentence till the revision is decided. Hence, following order.
ORDER
1. Application stands allowed.
2. The substantive sentence imposed by learned Judicial Magistrate First Class (Court No.5), Latur in S.T.C.C. No.937/2009 and thereafter it was confirmed by the learned Additional Sessions Judge-4, Latur on 04.05.2019 in Criminal Appeal No.50/2015, is hereby suspended till the hearing and final disposal of Criminal Revision Application No.323 of 2019.
3. The revision applicant be released on P.R. of Rs.30,000/- with two sureties of Rs.15,000/- each.
4. Bail before First Appellate Court.
Decision : Application allowed
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