VISHNU TELI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The Petitioner has challenged the judgment dated 9.2.2009 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 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.

(2.) 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.

(3.) On the other hand, Mr. Vinay Mathur, the learned Counsel for the petition, 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 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.