1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Vishnu Teli V/s. The State of Rajasthan & anr. S.B. Criminal Revision Petition No.1734/2009 S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :: November 25, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Vinay Mathur for the petitioner. Mrs.Alka Bhatnagar PP for the State. Mr. Vikram Singh for the respondent. Reportable The petitioner has challenged the judgment dated 09.02.2009 passed by the Civil Judge (Junior Division) and Judicial Magistrate, (First Class) No.2, Beawar whereby the learned Magistrate has convicted the petitioner for offence under Section 138 of Negotiable Instrument Act (hereinafter referred to as “the Act”) and has sentenced him to undergo six months of simple imprisonment, and has also ordered that the petitioner shall pay a sum of Rs.3,00,000/- to the complainant- respondents, and in default thereof, to further undergo a sentence of three months simple imprisonment. The 2 petitioner has also challenged the judgment dated 12.11.2009 passed by the Additional District & Sessions Judge (Fast Track) No.2, Beawar City, Ajmer, whereby the learned Judge has upheld the conviction and sentence passed by the learned Magistrate. Since the petitioner had not surrendered prior to filing of the revision petition, a preliminary objection has been raised, by the learned Public Prosecutor, with regard to the maintainability of the revision petition. According to the learned Public Prosecutor, Rule 311 of the Rajasthan High Court Rules, 1952 (hereinafter referred to as “the High Court Rules”)requires that before a revision petition can be entertained, the accused, who has been sentenced by a Court, should surrender in case he was on bail during the trial. In order to buttress this contention, the learned Public Prosecutor has drawn the attention of this Court to sub-rule 3 of Rule 311 of the High Court Rules. On the other hand, Mr. Vinay Mathur, the learned counsel for the petitioner, has vehemently argued that a distinction needs to be made between “presentability of a petition” and “maintainability of the petition”. According to him, Chapter-XVIII of the High Court Rules deals with “proceedings other than original trial”. Rules 308 and 311 of the High Court Rules deal with 3 presentation of the revision petition before this Court. Sub-rule (3) of Rule 311 does require a certificate to be submitted showing the position of the accused person, i.e., if he has surrendered in case he was on bail during trial. But in case the said certificate is not submitted, it does not adversely affect “the maintainability” of the petition. In case, the said certificate is not submitted in the registry, the registry can point out “a defect” and place the file before the concerned Court. Therefore, according to the learned counsel for the petitioner, there is no need for the petitioner to surrender prior to filing of the petition. Secondly, the “maintainability” of a revision petition has to be adjudged on the basis of Section 397 read with section 401 Cr.P.C. There is no requirement in Section 397 Cr.P.C., that before a revision petition is presented, the accused has to surrender. Rule 311 of the High Court Rules cannot impose a condition which does not exist in the parental Legislation, namely, Section 397 read with Section 401 Cr.P.C. Thirdly, according to the learned counsel, the requirement that the accused must surrender before a revision petition is held to be maintainable, such a pre- requisite would adversely affect the liberty of the accused 4 person. Therefore, such a requirement would be in violation of Article 21 of the Constitution of India. Lastly, the learned counsel for the petitioner has contended that the since the respondent and the petitioner have already entered into a compromise, since the amount has already been paid to the complainant- respondent, in such a condition to insist that the petitioner must surrender and go to jail would play havoc with his liberty. Such a requirement would be an unreasonable requirement of law; such a law would be against the concept of due process of law. It would, thus, clearly violate Article 21 of the Constitution of India. Heard the learned counsel for the parties on the preliminary objection. Chapter XVIII of the High Court Rules deals with the “Proceedings other than Original Trial”. Rule 308 is as under :- Office report on petition for appeal or application for revision :- The report shall relate to the following matters namely, in the case of an appeal- (i) whether it lies to this Court ; (ii) whether it is within time; (iii) whether it accompanied by the requisite papers; (iv) whether any court-fee is payable and if 5 a court-fee is payable, whether the court-fee is sufficient; and (v) whether an appeal had been previously filed on behalf of the appellant or any other person tried along with him and if it had been so filed, the result, in case the appeal has been decided, in the case of a revision - (i) whether a revision had been previously filed in the Court of the Sessions Judge or the District Magistrate, as the case may be; (ii) whether it has been filed within ninety days excluding the time taken in obtaining the requisite copies; (iii) whether it is accompanied by the requisite papers; (iv) whether any Court-fee is payable and if a Court-fee is payable, whether the Court-fee paid is sufficient; (v) whether an application for revision had been previously filed on behalf of the applicant or any other person tried along with him and if it had been so filed, the result, in case the revision has been decided. Rule 311 is as under :- Particulars to be contained in a petition of appeal and application for revision.- (1) Every petition of appeal or application for revision shall state - 6 (a) the name, and where the appeal or revision is not on behalf of the State, the address of each appellant or applicant; (b) the name and, where the opposite party is not the State, the address of each opposite party; (c) the Court from whose order the appeal or revision is filed and the name of the Presiding Officer; (d) the nature of the order passed including the sentence awarded, if any, by such Court; (e) the provision of law defining the offence of which the accused person was convicted or acquitted by such Court or under which he was dealt with by such Court; (f) the ground or grounds, numbered consecutively, of objection to the order from which the appeal or revision is filed; and (g) the relief sought; and shall be signed by the appellant or the applicant, as the case may be, or by an Advocate on his behalf. (2) A petition of appeal from an appellate order of acquittal or an application for the revision of an order passed in appeal or revision shall also state the name and description of the Court which tried the case in the first instance and the nature of the order passed by it. (3) In a case in which a sentence of imprisonment has been awarded, the petition of appeal or the application for revision or an application under section 561-A, Criminal 7 Procedure Code shall also contain a certificate signed by the Advocate for the appellant or the applicant, as the case may be, stating that the accused was not on bail or that, if he was on bail, he has surrendered to it. In a case in which bail has been granted by the Court appealed from under sub- section (2-A) of Section 426 of the Code of Criminal Procedure, the fact shall be stated in the petition of appeal. A bare perusal of these rules clearly reveals that while Rule 311 of the High Court Rules deals with the particulars which need to be mentioned in the application for revision, Rule 308 of the High Court Rules deals with the report which need to be made by the Registry with regard to the application for revision. According to the Rule 308(3) of the High Court Rules casts a duty on the stamp reporter to see whether the petition is accompanied by requisite papers or not? Naturally, the requisite papers refer to Rule 311 of the High Court Rules which lays down the particulars which need to be contained in application for revision. According to Rule 311(3) of the High Court Rules, in case a sentence of imprisonment has been awarded, the advocate for the applicant should submit a certificate stating whether the accused was on bail during the trial or whether he has surrendered in case he was on 8 bail. Therefore, Rule 311(3) merely requires a certificate to be submitted by the advocate. In case, the said certificate is missing from the application for revision, the stamp reporter is duty bound to report that the petition is not accompanied by the requisite papers. In such a scenario, he is entitled to mark the petition as being “defective”. Naturally, in case the petition is shown to be “defective”, the petition is to be listed before the Court in the category of “orders” with regard to the “defect” pointed out by the registry. It is for the Court to either over-rule the defect, or to direct the petitioner to remove such defect by surrendering. Therefore, Rules 308 and 311 of the High Court Rules merely deal with the procedural law and not with the substantive law. A distinction has to be made between “presentability of a petition” and “maintainability of a petition”. Presentability of a petition deals with the “acceptability” of a petition by the registry. In case, there are any defects in the body of the petition, or in the paper book, the registry is empowered to point out the “defect” and claim that because of the “defect”, the petition cannot be accepted. However, “maintainability” of a petition deals with whether the petition can be heard under the law or 9 not? Therefore, the submission of the certificate or the lack of such certificate with the body of the petition adversely affects only its “presentability” before the registry itself. It does not and cannot affect its “maintainability” under the law before the Court. The maintainability of a revision petition would have to be seen in the light of Section 397 read with Section 401 Cr.P.C. Section 397(2) prohibits the filing of a revision petition against an interlocutory order. In case, a revision petition were to be filed against an interlocutory order, according to Section 397(2) Cr.P.C., the said petition is “not maintainable” although such a petition may be presentable, if it were accompanied with the requisite documents/papers. Thus, it seems to be a misnomer that in case the said certificate does not shows the fact that the revisionist has surrendered, the petition, ipso facto, becomes “not maintainable”. In fact, in case the petition is not accompanied with such a certificate, the petition merely becomes non-presentable by the registry. The words “if he was on bail, he has surrendered to it” cannot be stretched to the point that these words require that the revisionist/appellant must surrender himself prior to filing his revision or appeal. If these words were interpreted to mean that the appellant or the 10 revisionist must surrender prior to filing the appeal or the revision, such an interpretation would lead to anomalous situations: firstly, in case where the trial Court itself has suspended the sentence for a limited period, and in case the appellant or the revisionist were to file the appeal or the revision petition during the said period, it would be an anomalous situation to insist that although the sentence stands suspended, the appellant/revisionist must surrender. Such a situation would be quixotic for while a part of the judiciary suspends the sentence, the other part of the judiciary expects the appellant to surrender during the period of suspension of sentence. Secondly, since there is no such requirement under Section 374 or under Section 397 read with Section 401 and 374 Cr.P.C, prior to filing of appeal/revision petition, the rules cannot be permitted to insert a condition which does not exist in the parental law. Thirdly, such an interpretation of the rules would make the rules unconstitutional. For, such a rule would jeopardize the personal liberty of a person. Moreover, such a rule would be against the concept of “due process of law” as contained in Article 21 of the Constitution of India. Therefore, an interpretation which leads either to anomalous situation, or to the declaration of a provision of 11 law as unconstitutional, such an interpretation should be avoided like the plaque. Therefore, this Court is of the opinion that the non-surrender of the appellant or revisionist would not make the appeal or the petition “non-maintainable”. The non-surrender would merely mean that the appeal or the petition has not been presented properly before the registry. Therefore, the preliminary objection raised by the learned Public Prosecutor is unacceptable. Both, the accused person and the complainant are present before this Court; they have been duly identified by their respective counsel; a compromise, entered between the parties, has also been produced before this Court; the same shall be taken on record. Recently, the Hon'ble Supreme Court has opined that the aim and purpose of Section 138 of NI Act is not to punish the accused, but to ensure that the due amount is duly returned to the complainant. Considering the nature of litigation under Section 138 of N.I. Act, in case the amount is paid and is duly accepted by the complainant the Apex Court is of the opinion that the case should be compounded and the accused should be acquitted. In the present case, the amount has duly been accepted by the complainant and the compromise is a 12 clear proof thereof. Thus, this Court quashes and sets aside the judgments dated 09.02.2009 and 12.11.2009 and acquits the petitioner for the offence under Section 138 of the N.I. Act. Hence, this petition is, hereby, allowed. (R.S.CHAUHAN)J. A.Asopa/-