- (1.) AN application for modification of orders of this Court dated February 6, 2009 and March 18, 2009 passed by this Court in. S.B. Criminal Misc. Bail Application No. 344 of 2008 in S.B. Cr. Revision Petition No. 1571 of 2008 has been filed by the petitioner. The petitioner has not mentioned in the application as to in which section his application has been filed. Mr. R.D. Rastogi, orally requested this Court that this application may be treated as application under Section 482, Cr.P.C. On the request of the Counsel for the applicant, this application has been treated to have been filed under Section 482, Cr.P.C.
(2.) THE petitioner in this case filed Revision Petition No. 1571 of 2008 against the order dated November 29, 2008 of Additional Sessions Judge No. 2, Alwar in Criminal Appeal No. 47 of 2007 against the judgment dated September 28, 2007 passed by Addl. Chief Judicial Magistrate No. 2, Alwar in Criminal Case No. 23/ 4/2005 (22/2005) 23/344/2005 (68/2005) and 23/272/2005 (203/2005) whereby the petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced gor two year' S .1. The operative portion of the order dated 28.9.207 reads as under: The accused petitioner filed appeal before the Addl. Sessions Judge No. 2 Alwar, against the order of Addl. Chief Judicial Magistrate No. 2, Alwar dated 28.9.2007. The Addl. Sessions Judge No. 2, Alwar rejected the appeal filed by the accused petitioner, vide his order dated November 29,2008. The operative portion of the order dated 29.11.2008 reads as under:
(3.) MEANING thereby the accused petitioner in the first instance convicted by the Addl. Chief Judicial Magistrate No. 2, Alwar and thereafter his appeal before the Addl. Sessions Judge No. 2, Alwar was also rejected, and against both these orders, he has filed the revision petition before this Court. The revision petition was filed by Shri N.A. Naqvi, Advocate, but later on, on his appointment as Addl. Advocate General of the State of Rajasthan, in his place Mr. Nawab Ali Rathore, Advocate represented the petitioner in the revision petition. Mr. Nawab Ali Rathore, has taken number of opportunities for arguing the application under Section 389, Cr.P.C. when this case was listed before this Court on February 6,2009, Mr. Nawab Ali, Advocate appearing for the petitioner made a request to this Court that he is ready to deposit half of the amount of the cheque, after obtaining consent from his client. Mr. Nawab Ali, Advocate obtained consent of his client over mobile phone and replied to this Court that his client is ready to deposit half of the amount of the cheque before the trial Court. At the time of making this request Mr. J.P. Goyal, Advocate representing the complainant was also present. Request of Mr. Nawab Ali, Advocate that his client is ready to deposit Rs. 55,00,000/- was accepted by this Court and further request of the Counsel for the petitioner that the sentence awarded by the trial Court may also be suspended during the pendency of the revision petition. This Court suspended the sentence of the accused petitioner only on the condition that the accused petitioner is ready to deposit the amount of Rs. 55,00,000/- (i.e. half of the amount of cheques in dispute) before the trial Court. While passing the order dated 6.2.2009 this Court was aware of the fact that the accused petitioner is absconding and the Appellate Court has not suspended his sentence as he was not present at the time of pronouncing the judgment before the Appellate Court. The accused petitioner is absconding since the pronouncement of order by the Appellate Court and he is mis-using the liberty given by the Court, this Court further granted liberty on February 6, 2009 to the petitioner to deposit Rs. 55,00,000/- before the Trial Court and his sentence was suspended on his furnishing bail bond in the amount of Rs. 5,00,000/- and two sureties in the amount of Rs. 3,00,000/- each to the satisfaction of the trial Court and the accused petitioner was further directed to appear before this Court on March 17, 2009 and as and when directed by this Court. But after passing the order dated February 6, 2009, the petitioner moved application on March 9, 2009 that he is resident of Chandigarh and it will be very difficult rather unsafe for him to travel from Chandigarh to Alwar along with huge amount and, therefore, instead of depositing the cash the petitioner may kindly be directed to furnish the Bank guarantee. The learned Counsel for the complainant objected the application and stated that this Court has already granted number of opportunities to deposit the amount but the accused petitioner mis-used the liberties granted by this Court. Mr. Nawab Ali, Advocate on this further obtained consent of his client over mobile phone and informed this Court that his client is ready to deposit the cheque before the trial Court. Further granting liberty to the Counsel for the accused petitioner on the consent given by him over mobile phone that his client is ready to deposit cheque before the trial Court, on March 18, 2009 this Court on the application of the petitioner dated March 9, 2009 directed the petitioner to deposit Rs. 55,00,000/- through cheque in the name of respondent No. 2 within a period of one month and further directed the petitioner to present before this Court on May 28,2009. Without complying with the orders of this Court dated 6.2.2009 and 18.3.2009 passed by this Court and the orders of the Appellate Court and the trial Court, and after getting number of liberties from this Court to comply with the orders of this Court, the petitioner represented by another Counsel Mr. R.D. Rastogi, filed application on April 27, 2009 along with affidavit requesting this Court that the application may be allowed and the orders dated February 6,2009 and March 18,2009 passed by this Court may kindly be modified and the petitioner may be permitted to submit a Bank guarantee of Rs. 55.00 lacs before the trial Court in place of depositing the said amount either in cash or by cheque in the name of the complainant as directed by this Court. While arguing the matter, Mr. R.D. Rastogi, tried to again and again stress over back history of the proceedings in the matter and submitted that the dispute raised by the respondent complainant is totally of civil nature and a Bank guarantee runs as good as cash security and the petitioner had already obtained the Bank guarantee for the sum of compensation and it can very well be operated if petitioner loses ultimately in the revision petition. In these circumstances a prayer was made that the application may be allowed and the orders dated 6.2.2009 and 18.3.2009 passed by this Court may be modified and the petitioner may be permitted to submit a Bank guarantee of Rs. 55 lacs before the trial Court in place of depositing the said amount either in cash or by cheque in the name of the complainant as directed by this Court. It may be submitted that the prayer of the accused petitioner for submitting the Bank guarantee in the application dated March 9, 2009 was turned down by this Court while passing the order dated March 18,2009 and this Court permitted the accused petitioner after obtaining his consent by his Advocate over mobile phone passed the order dated March 18, 2009 directing him to deposit cheque in the amount of Rs. 55,00,000/- before the trial Court and further a direction was issued to him to appear before this Court on May 28,2009. It appears that without complying with the order of this Court dated March 18,2009, a further application was moved by him through another Counsel for again requesting this Court to allow the accused petitioner to submit the Bank guarantee of Rs. 55,00,000/- through his application dated April 27, 2009 stated to be filed under Section 482, Cr.P.C.;