Narendra Kumar Jain -II, J. - (1.) AN application has been moved on behalf of the petitioner under Section 389 read with Section 482 Cr.P.C. for staying the conviction of the applicant -petitioner Harinarayan Tak S/o. Late Shri Debu Tak awarded by learned Additional Chief Judicial Magistrate, Chomu vide judgment and order dated 22.10.2009 in Criminal Case No. 1261/2005, whereby the learned trial court has convicted and sentenced the accused -petitioner Harinarayan Tak under Section 138 of Negotiable Instruments Act with one year's simple imprisonment and a fine of Rs. 2,00,000/ -; in default of payment of fine to further undergo three months simple imprisonment. Appeal filed by the accused -petitioner before the appellate court, i.e. Additional Sessions Judge(Fast Track), Chomu in Criminal Appeal No. 29/2009 was dismissed vide judgment dated 14.12.2010. Learned counsel for the petitioner has contended that the accused/petitioner has preferred a revision petition, i.e., S.B. Criminal Revision Petition No. 1368/2010 before this Court, wherein it has been clearly mentioned that the cheque was given to the complainant for security purpose only and the amount taken by the accused/petitioner from the complainant was returned to him with interest. The complainant misused the cheque, therefore, both the impugned judgments and orders passed by the courts below are liable to be quashed and set aside. It is further submitted that the petitioner also moved an application under Section 397 read with Section 401 Cr.P.C. for suspension of sentence and this Court vide order dated 17.03.2011 while allowing the application, suspended the sentence of the petitioner till the final disposal of the revision petition pending before this Court.
(2.) LEARNED counsel for the petitioner has also contended that the prosecution as well as the complainant have failed to prove the case against the petitioner and he is unnecessarily being dragged into the present case. The petitioner is a honest person and he was an employee of Nagar Palika, Chomu, Government of Rajasthan and in the wake of impugned judgment of conviction, the petitioner has suffered loss of service by way of termination order having been passed against him. Learned counsel for the petitioner further submitted that aforesaid offence under Section 138 of Negotiable Instruments Act is not amounting to moral turpitude and further the disposal of the instant revision petition will take long time and looking to the future of the petitioner and his family members, if the conviction of the petitioner is not stayed, they will face huge difficulty. There is no stigma on the part of the petitioner through out his whole career. The petitioner is the sole bread earner of his family and in case the conviction of the petitioner is not stayed, the very purpose of filing the present application for staying the conviction will be frustrated. The stay of conviction of the accused -petitioner has become most essential in the facts and circumstances of the present case, therefore, the conviction of the petitioner may be stayed. Learned counsel for the petitioner has further contended that even in corruption cases, appellate court in a suitable case may stay the operation of the order of conviction. It is also contended that order of conviction can also be stayed even after an order of removal from service is passed by the department concerned. In support of his contentions, learned counsel for the petitioner has relied upon the cases of Jagdish Kishore v. State of Rajasthan ( : WLN (UC) 1982 14); Dr. Trilochan Singh v. State of Rajasthan (1993 RLR 77); Om Prakash v. RSRTC, Jaipur,( : 1983 RLW 77); Jamaluddin v. State of Rajasthan (1983 RLR 407); Praveen Kumar Paras Kumar Gokhroo v. State of Gujarat and Ors. ( : 2010 (2) Crimes 265(Guj.)); Laxman Lal and Ors. v. State of Rajasthan & Ors., ( : 2006(1) RLW 121) and Kanhaiya Lal v. State of Rajasthan ( : 2001 (3) WLC (Raj.) 412), wherein a Division Bench of this Court has suspended the life sentence of the appellant on the ground that a notice of termination was served upon and relying upon the case of Laxman Lal & Anr. v. State of Rajasthan & Anr. ( : 2004 (1) RCC 27; Hari Narain v. State of Rajasthan & Anr. : 2005 (2) RCC 691; Suresh Kumar v. State of Rajasthan (2006 (2) RCC 1009; Shivlal v. State of Rajasthan ( : 2007 (3) RCC 1039) and Mahendra Pal Singh v. State of Rajasthan (2007 (1) RCC 365), the learned counsel for the petitioner has vehemently contended that the conviction should be stayed so that right of the applicant -petitioner to livelihood can be protected.
(3.) LEARNED counsel for the petitioner has placed reliance on a decision of Hon'ble Supreme Court in Rana Nawrang V/s. Ramesh Nawrang & Ors. : 1995 (2) SCC 513, wherein the Hon'ble Supreme Court has held as under: - - 19 - - Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and, therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the code. We are, therefore, of the opinion that the Division Bench of the High Court not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision on the Code for staying the operation of the order of conviction. In a fit case if the High Courts feels satisfied that the order or conviction needs to be suspended or stayed provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone.;