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The Negotiable Instruments Act, 1881
Section 138 in The Negotiable Instruments Act, 1881

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Rajasthan High Court
Mahesh Kumar Dwivedi vs State Of Rajasthan And Another on 4 April, 2013

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

S.B. CRIMINAL MISC. Third Stay Application NO. 724/2013

in

S.B.Criminal Revision Petition No.884/2011

(Mahesh Kumar Dwivedi Vs. State of Rajasthan)

Date of Order :: 04.04.2013

HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL.

Mrs.Naina Saraf for the petitioner.

Mr. Sanjeev Mehla, Public Prosecutor for the State.

Mr. Sanjay Mishra for the respondent No.2.

Heard learned counsel for the parties on the third application for stay of the conviction.

Brief relevant facts for the disposal of this application are that the accused-petitioner was convicted for offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and fine of Rs.10,00,000/- and in default thereof to further undergo simple imprisonment for three months by the trial Court i.e. Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur in Criminal Case No.1917/2006 and the Appeal No.184/2010 filed by the petitioner was also dismissed by the appellate Court i.e. Additional Sessions Judge (Fast Track) No.5, Jaipur Metropolitan, Jaipur vide judgment and order dated 13.06.2011 and the conviction and sentence passed by the trial Court was upheld and affirmed. It is pertinent to note that the complainant-respondent also filed Criminal Revision Petition No.237/2010 before the Court below and the same was partly allowed by the same order dated 13.06.2011 and it was ordered by the Court that in case the amount of fine is deposited by the petitioner, the same may be paid to the complainant-respondent as compensation. Against the aforesaid judgments and orders passed by the Courts below, the accused-petitioner has filed this revision petition and the sentence awarded to him was suspended by the Coordinate Bench of this Court vide order dated 21.10.2011 and in compliance of the order, the petitioner has also deposited Rs.5 lacs in the trial Court. The second application for stay of conviction was filed by the petitioner on the premise that vide order dated 17.10.2011 the petitioner was put under suspension from his service and he apprehends that the Government may take further disciplinary action against him and even his services may be terminated. This application was dismissed by this Court by a reasoned order dated 14.9.2012. The present application has been filed mainly on the ground that the respondent-complainant has moved an application before the concerned department to take disciplinary action against the petitioner and there is every likelihood that his services may be terminated at any time as legal opinion has been sought by the Department from the Joint Legal Remembrancer (Finance), Legal Cell, Jaipur vide letter dated 5.2.2013 . It was submitted by the learned counsel for the petitioner that the second application for stay of conviction was dismissed mainly by the reason that no material has been placed on record by the petitioner in support of his apprehension that further action including his termination may be taken by the Government whereas thereafter on the basis of an application moved by the complainant necessary steps have already been taken by the department concerned and legal opinion has also been sought and there is every likelihood that his services may be terminated at any time as the conviction of the petitioner by the trial Court has been maintained and upheld by the Appellate Court and his prayer for stay of conviction has been turned down by this Court vide order dated 14.9.2012. It was further submitted that in compliance of order dated 21.10.2011, whereunder sentence awarded by the trial Court was suspended by the High Court, an amount of Rs. 5 lacs has already been deposited by the petitioner in the trial Court and if the petition filed by the petitioner is ultimately by any reason stands dismissed, the respondent-complainant would have a right to claim the amount already deposited by the petitioner. It was also submitted that the offence under Section 138 of the Negotiable Instruments Act, for which the petitioner has been convicted and sentenced, does not involve "moral turpitude" and it has no connection with his service/employment as it is a dispute between him and the respondent-complainant in their private capacity and, therefore, it is in the interest of justice that the order of conviction be stayed as in absence thereof there is every likelihood that the petitioner's services may be terminated resulting in great financial and mental difficulties to the petitioner and his family members. It was also submitted that the petitioner has no other source of earnings and income except his salary which he is getting in lieu of his service whereas he has liability to maintain himself and his family members. It was further submitted that the petitioner is not accused for an offence of corruption or any other offence of grave nature and in such facts situation the case of Om Prakash Vs. State of Rajasthan reported in 2008 (1) Cr.L.R. (Raj.) 735, upon which this Court heavily relied upon while dismissing the second application, is not applicable in the present case. In support of his submissions, learned counsel for the petitioner relied upon the cases of K.C.Sareen Vs. CBI Chandigarh and K.Devadas Vs. The General Manager (HRM) Union Bank of India.

On the other hand, learned counsel for the respondent-complainant submitted that it is well settled legal position that if the service conditions of an employee prescribes some consequences as a result of conviction by a competent court for an offence, the same are to be faced by the employee and he cannot be allowed to contend that if his conviction is not stayed as a consequence thereof he would face difficulties. It was also submitted that after dismissal of prior application for stay, no further special reasons have accrued to the petitioner requiring stay of conviction whereas mere probability of taking some action under relevant service rules can never be special reasons, more particularly when first application for the same relief has already been turned down. It was also contended that after getting his sentence suspended by the High Court, the petitioner by one or the other reason is delaying the hearing and disposal of the main petition. On consideration of submissions made on behalf of the respective parties and the material made available for my perusal on record as well as the reasons recorded by this Court in support of order dated 24.9.2012, I do not find any substantial change in the facts and circumstances of the case as well as no special reasons appearing on record so as to take a different view from the one taken in the aforesaid order and to suspend/stay the conviction of the petitioner. Even if for the sake of arguments, it is admitted that further disciplinary action including termination of service may be taken by the concerned department against the petitioner, the same cannot be said to be "special reasons" as the same is natural consequence of conviction of the petitioner in the present case and the relevant service rules clearly provides for such an action to be taken. As already been observed, if the service rules have been framed for taking action against the convict, then it is also a natural consequence of conviction, which empowers the employer to take action against the convict. So far as the fact that the conviction of the petitioner is for an offence not involving moral turpitude is concerned, I am of the view that it is for the disciplinary authority to consider the same and to decide what appropriate departmental action can be taken against the petitioner as a consequence thereof, but merely by that reason conviction cannot be stayed. Consequently, the third application for stay of conviction being devoid of any substance is, hereby, dismissed.

(PRASHANT KUMAR AGARWAL),J.

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